130 Ga. 865 | Ga. | 1908
The accused was convicted of murder, and to the overruling of his motion for a new trial he excepted. In addition to the general grounds, the only assignment of error made in the motion for a new trial is that the court committed error by his failure to charge the jury as to the law of voluntary manslaughter, the defendant contending that the evidence required such charge. There were no eye-witnesses to the killing with which the defendant was charged, a conviction having been obtained by the State upon circumstantial evidence and testimony given by witnesses relating statements made by the defendant in reference to the homicide. The defendant introduced no evidence, but made a statement. The deceased was found in a gully, with dirt and brush over him. At the place, and at a different place where the deceased was supposed to have been killed, tracks made with a wooden leg were found. The defendant was the only person in the community with a wooden leg. There were three wounds on the deceased; one above the eye, one on the right cheek, and the other under the right ear. The State introduced several witnesses, who detailed statements made to them by the defendant. One of them testified as follows: “John Bell said in the presence of me that he killed this boy in self-defense; that he come up on him and his wife; said he told him ‘Oh, yes; I have been laying for you and now I have catched you.’ He said this boy jumped up then and throwed a rock at him and throwed his hand back on his hip pocket, and he thought this boy had a pistol in his pocket, -and he run up on him and hit him, afraid that the boy would shoot him. He said he killed him with a stick.” Another witness testified as follows: “He said he found him with his wife. I think he first said he heard the boy and his wife talking, and went out there, and the boy throwed a handful of gravels at him; then he said he put his hand behind him, as if he was going to draw a pistol; I' ’don’t know whether he told me that or told somebody else. I ain’t positive I heard him say that.” Another witness testified as follows: “He said the reason he hit him he came on up by Dave Huff’s and
1. If this testimony was such as would authorize the jury to find the defendant guilty of the offense of voluntary manslaughter, it was the duty of the court to charge the law upon this subject, and his failure to do so would be error requiring a new trial, whether or not any request to so charge was made. Ray v. State, 127 Ga. 52 (55 S. E. 1046) ; Joiner v. State, 129 Ga. 295 (58 S. E. 859) ; Dennis v. State, 93 Ga. 303 (20 S. E. 315). The testimony of the State’s witnesses detailed statements made by the defendant, wherein he undertook to give reasons for killing .the deceased, to the effect that the defendant caught the deceased in a compromising position with his wife, and that a short time after he so found them the deceased threw a rock at the defendant. Several of the witnesses testified that the defendant stated that the deceased not only threw a rock at him, but that he also threw his hand behind him and that the defendant thought the deceased had a pistol. One of the State’s witnesses stated that he did not remember the defendant saying that the deceased threw his hand behind him and. that he thought he had a pistol. This witness testified that defendant told him he found deceased with his wife and deceased threw a rock at him. Another witness stated that the defendant did not say whether he thought the deceased was drawing a pistol, but said he threw his hand on his hip. All of the witnesses agreed that the defendant stated that he found the deceased in a compromising position with his wife, and that the deceased threw a rock
Reversed.