MOREMEN, Justice. Appellant, McKinley McDaniels, was indicted for the murder of George Hammons. Upon trial he was found guilty of voluntary manslaughter and his punishment was fixed at 15 years in the penitentiary.
Appellant urges as grounds for reversal: (a) that the jury should have been directed to return a verdict of not guilty; (b) that the instructions were erroneous; (c) that the argument of counsel for the Commonwealth was improper and prejudicial.
Appellant and deceased owned and lived on adjoining land. They had had a controversy over the dividing line between the properties. A paling fence marked the boundary line part of the way and a branch completed it. On the day before the killing appellant had been cleaning up land at or near the disputed line. On the morning the trouble occurred appellant returned to this portion of his land with a young man named Gray. Gray climbed a willow tree, presumably on appellant's land, for the purpose of cutting off a limb which reached over Hammons' land. George Hammons then appeared, thrust the barrel of a Winchester rifle through the paling fence and demanded that Gray stop his work or be shot out of the tree. Gray jumped from the tree and left the scene.
Appellant testified: 'About that time, my wife came up and he said, 'I'm going to kill every God damn one of 'you-uns.' She motioned for me to go behind her. I went behind her, and I left. Afterwards, I heard him say to her, 'If you come one step, I'll kill you.' That's the last words said between me and him.' Appellant then testified that he walked about 100 steps to his house where he picked up his gun and walked back to protect his wife. He said that he met his wife about halfway between the house and the spot where the argument had occurred; that he didn't see George Hammons around and he told his wife that he was going back to get his tools and would get a warrant for Hammons. He stated that after he had taken about 10 steps, Hammons fired twice. He got behind a tree and the third shot cut the edge of the tree. He saw Hammons rise up and twist around as if he were reloading his gun. Appellant fired. The shot struck Hammons in the back near the right shoulder blade and emerged near the collarbone. Deceased walked a short distance before he fell and died. There is some evidence in the record that Mrs. McDaniels, when she remained near the scene of the argument, urged Hammons to settle in court rather than by violence. An eyewitness, Powell Carnes, was standing at the home and store building of McDaniels when the trouble occurred. He saw McDaniels and Gray going down towards the back end of the property, not far from Hammons' barn, with ax, saw and rope. In about 30 minutes he saw McDaniels come back to the house and arm himself. When McDaniels started back to the scene, he saw McDaniels' wife coming towards the house. Meanwhile he had seen Hammons apparently leave the fence and start towards his barn. Carnes stated that he requested McDaniels not to go back down there and also hollered to George Hammons and told him to run. Neither heeded his advice. McDaniels continued to walk towards the fence and Hammons came back either to the fence, or to a stack of palings, and soon fired the first three shots. He saw Hammons when he rose up.
It may be gathered from the foregoing that appellant attempts to justify his return to the scene of the original argument -- when he knew, or should have known that Hammons was still in the vicinity -- because (a) he believed his wife was in danger; and (b) after he discovered she was not, he decided to get the various implements he had abandoned. We cannot place too much credence in appellant's contention that he returned to the house in order to obtain a gun to protect his wife or that either his wife or he was in danger after the original incident was over. He testified on cross-examination.
'Q. 8 Did you go get your gun after that? A. After which?
'Q. 9 After you heard him say that to your wife, that he was going to kill her. A. Yes sir.
'Q. 10 Why didn't you take your wife with you? (Witness hesitates.) A. I don't guess --
'Q. 11 Why didn't you take your wife with you? A. I take care of myself.
'Q. 12 Why, didn't you tell the jury you went to take care of your wife? Which was it? A. I start with myself, then my wife.
'Q. 13 You take care of yourself and then your wife. Then, if you were not taking care of your wife, he had his gun there and he had his gun on her, why didn't you tell your wife to go to the house? (No answer.)
'Q. 14 Don't you want to answer that? A. She's got to help her own self. She takes care of herself.
'Q. 15 She didn't need any help, is that what you thought when you left there? A. Not at that time.
'Q. 16 You didn't think she needed any at that time. When did you decide she needed some? Before you got ...