From Huntington Circuit Court; James C. Branyan, Judge.

Prosecution by the State of Indiana against Boston Weston.

From a judgment of conviction, he appeals.  Reversed.

Weston v. The State.

[No. 20,887. Filed November 2, 1906.]

1. Homicide.—Manslaughter.—Assault and Battery.—Death Resulting.—
2. The defendant's commission of an unlawful assault and battery upon deceased, resulting in his death, constitutes manslaughter, p. 326.

Weston v. State—167 Ind. 324.

Of the following state of facts:

On the evening of January 30, 1906, a party of six men went from Decatur to Huntington to attend a minstrel performance and a lodge banquet . The members of the party, or some of them at least, commenced drinking when they reached Huntington. They were quite boisterous at the performance, and various members of the party, or all of them, were drinking at the banquet, which was held afterwards.

At 1 o'clock a. m. they telephoned for a hack, and appellant, who was a hack driver, came in response to the message, and drove them to the depot. Upon their alighting, an altercation occurred between them and appellant over the question as to whether he was entitled to seventy-five cents in addition to the like sum which he had already received.

The upshot of the quarrel was that appellant struck one of the party, Roman J. Holthouse, with his fist, knocking him down. As the latter fell, his head struck the sidewalk, causing his death. According to the testimony of appellant, while the dispute was in progress the members of the party advanced toward him, forming a semicircle, while he retreated until he stood beside his hack.

Their talk was loud and profane, and their manner threatening. Appellant testified that he merely continued to assert that he was entitled to the additional fare, when the deceased, calling him a vile name and threatening to knock his head off, stepped quickly towards him. It was in these circumstances, according to appellant, that the blow was struck, and he testified that he was frightened at the time.

There was testimony on behalf of the State which tended to put the matter in a different light, but in material particulars appellant was corroborated by other witnesses.

"So claim is advanced that appellant intended to kill the deceased. If appellant is guilty, it must be on the theory that in striking the blow he committed an assault and battery, and that therefore the case is one in