I agree that the facts in this case probably raise the issue of manslaughter with that cogency that required a submission of that grade of offense. It is true that the State's evidence makes a case of murder, and that the testimony of defendant would make a case of perfect self-defense, and a casual reading of the record would perhaps incline one to the opinion that these were the only issues raised. The State would have a fatal shot fired while the woman was on the floor. The defendant testifies to going home, a family row, his wife obtaining a pistol and shooting at him, a scuffle in which the pistol was again fired; that he got the pistol from her, when she secured an ax and started at him, when he shot three times with the pistol he had taken from his wife. Several witnesses testified for defendant to seeing the ax in the room, while the State in its rebuttal testimony presented its proof to show that there was no ax in the room, and under this evidence, as made by the record, the jury would be authorized to find that the assault with an ax, after the pistol had been taken from her, was untrue, and this would leave defendant's case that he had gone home, when a family row ensued; that his wife shot at him, when a scuffle ensued, a second shot being fired during the scuffle; that he then succeeded in taking the pistol from her, and he fired three shots, killing her. If this was all the testimony, we do not think anyone would question the fact that this testimony would raise the issue that the killing took place under circumstances tending to show passion and fear raised by an adequate cause. We have understood the rule to be, that if from the evidence as a whole a jury would be authorized to conclude that the killing occurred under a given state of facts, that issue should be submitted in an appropriate charge, and the writer agrees to a reversal because of the failure to submit the issue of manslaughter. Again, while perhaps there is not shown due diligence in seeking to find out what could be proven by the witnesses alleged to be newly discovered, yet the facts sworn to by these witnesses would be *Page 542 most material. If it had been proven to the satisfaction of the jury that an ax was found in the room, a different result may have been reached Officer Carson says he was one of the first persons to enter the room where the dead woman was found; that the ax was in the room, and he used the ax in nailing up a door. Mr. Cathey also swears to material facts on this issue If the facts testified to by defendant are true (and there is no other eyewitness to the tragedy), no one would question he was justified, and the evidence of Carson and Cathey would tend strongly to support his testimony. According to this record he had been assaulted twice before by deceased, being shot once and cut another time. The reputation of deceased was that of a violent and dangerous woman, she being under indictment for assault to murder at the time of the homicide. I am of the opinion that justice demands a new trial in order that all the evidence may be heard and all the issues raised thereby submitted.