¶1By the Court. delivering the opinion.
¶2The Court below refused to grant the motion for a new trial. Was that right?
¶3One of the grounds of the motion was, that the verdict was contrary to the evidence. Was this ground well founded ? ■ '
¶4There can be no doubt, that Guilford interfered in the fight between Thompson and Calhoun, by laying hold of Calhoun He may have done this to aid Thompson, or he may have done it, to separate the combatants. If the former was his object, he was guilty; if the latter was his object, he was innocent.
¶5Which was his object ? Or, rather, is it clear beyond a reasonable doubt, that the former, and not the latter, was his object? This is the question, so far as the present ground is concerned.
¶6The answer to the question, depends, mainly, on the dying declarations of Calhoun himself.
¶7Duncan’s testimony as to these declarations is, that Calhoun declared, that “when Thompson said he could whip any God damn son of a bitch in the house, he rose up, and Thompson clinched him, and prisoner took hold of him, and made out like he was trying to part them, but would not do it, till he deceased was cut all to pieces.”
¶8According to this, Guilford “ made out like he was trying to part them,” all the time, and finally did part them, though not until after the mortal wounds had been given.
¶9That Guilford was merely feigning an effort to part the ■combatants, could have been only matter of opinion, with Calhoun. Is there not enough to raise a reasonable doubt, as to whether, he was not mistaken in this opinion?
¶10The time of the fight was eleven or twelve o’clock of a dark rainy night. Calhoun therefore, in getting his impressions, would be deprived of the aid of a sense the most important of all, the sense of sight. Guilford was drank; *324and a drunken man can make but an awkward hand at parting two men fighting. It may well be, that the honest efforts of such a man to accomplish that object, would operate unfairly; and if they do, it is most natural that the party against whom they so operate, will construe them into foul play. Guilford did, finally, part the combatants; true, not until after Calhoun was “ cut all to pieces.” But there is no evidence to show, that Guilford, if trying to part them in good faith, could, by his utmost efforts, have done it sooner than he did. Pie was drunk — he was a man “ not strong” in his arms — the night was dark and rainy — the stabbing was probably completed in a few seconds, after the parties commenced fighting. And if Guilford was merely feigning, why should he part them, as long as Thompson was disposed to fight. In the dark he could not know the extent of the wounds inflicted by Thompson, if he could know, that wounds were inflicted at all. And if his object was to aid Thompson, why should he separate them until he knew this ? Why rather, should he not continue the aid, until Thompson expressed himself satisfied, or desisted from the fight ? And then, what motive was there, for Guilford’s joining Thompson in the fight. He had no cause of quarrel with Calhoun. No word of insult, or of anger, had passed between them. It was Thompson, that was attached to the woman, Playmile, not he. The connection between him and Thompson, seems to have been transient. They came to the house together, but came there in ignorance of whom they were to meet. Guilford departed almost directly after the fight, in company with Morman, a friend of Calhoun, leaving Thompson behind, where he stayed all night. When the parties were about to fight in the house, Guilford said, “ boys, dont fight in the house, and caught the arm of Thompson
¶11We think that there is enough to raise a reasonable doubt, as to whether Guilford was not really, rather than feignedly, merely, endeavoring to separate the combatants.
¶12*325If there is, the verdict was contrary to the evidence.
¶13This ground of the motion, then, is in our opinion, a good ground.
¶14There is nothing in the second ground. King vs. The State 21, Ga. 221.
¶15Nor is there anything, in the first and third grounds. See Thompson vs. The State, argued and decided immediately before this case.
¶16The fourth and fifth grounds are involved in the sixth, which has already been considered.
¶17The case is manifestly, not one of circumstantial evidence. Therefore, the seventh ground is without foundation.
¶18A new trial is granted on the sixth ground alone, viz: that the verdict was contrary to the evidence.
¶19Judgment reversed.