Appeal from Sevier Circuit Courty James S. Steel, Judge;

STATEMENT BY THE COURT.

The appellant was indicted for voluntary manslaughter, was convicted of involuntary manslaughter, and sentenced to seven months’ imprisonment in the penitentiary. He appeals to this court.

In October, 1907, appellant and several others, including Nick White, were in a wagon going from DeQueen to Ultima Thule. Appellant and White had a fight. Appellant left the wagon, seized a “binding pole” about six feet long, and struck at White three times. White was on the wagon, and the wagon was in motion. Appellant struck White two blows. White got on his hands and knees, and attempted to turn around as if to put his hands on the side of the wagon, but he missed the “wagon bed” and fell. The left hind wheel of the wagon ran over his shoulder and down his body. White' went down the road a short distance and lay down. It was shown that the stick with which appellant struck White was crooked, and the witness for the State did not know whether the blows knocked White off the wagon or not.

The'doctor who was called to see White soon after he was hurt testified that his bowels were badly injured, and it was his opinion that White’s death resulted from the injury to'his bowels. White complained only of the injury to his bowels where the wheel ran over him, and the body indicated that the bowels had been badly'mashed and injured. It was shown that in a dying declaration White said “that the boys had butchered him up so that he could not live, that George (appellant) knocked him out of the wagon, and Jim Polk (the driver) ran the wagon over him.” He received his injuries in Sevier County, and died there about six days after.

One of the witnesses for the defense who was on the wagon and saw the fight testified substantially as follows:

“I was sitting by Tom Polk, who was driving. The first •I knew of the matter was Tom said they were going to have a dance, and George said he was going. Nick began to curse George. Tom told him to shut up, and told George that he was just drinking and cutting up. George jumped off the wagon and got the stick. He struck at Nick, hut hit the side of the wagon and the coal oil tank. He didn’t strike Nick at all. Nick tried to get his knife out, and attempted to put his hand on the side of the wagon, but missed it and grasped the wheel. It threw him under the wagon, and he was run over. Mr. Dale was sitting on the back end of the wagon. He and George had two pints of whisky. Yes, sir; I saw him drink some of it. Nick had his knife in his hand when he was trying to get off the wagon and fell under.'”

The court, among others, gave the following prayers of the State:

“1. Manslaughter is the unlawful killing of a human being without malice, expressed or implied, and without deliberation. Manslaughter may be voluntary or involuntary.

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