157 Ga. 195 | Ga. | 1924
Lead Opinion
Ira Bryant was tried under an indictment charging him with the offense of murder; and the jury trying the case returned a verdict of guilty, without a recommendation. The defendant made a motion for new trial, which was overruled, and to the judgment overruling the motion he excepted.
It appears from the evidence that on the evening of the homicide Jim Lewis, the decedent, accompanied the accused to the latter’s home. It was late in the afternoon. About 9:30 o’clock that night Dr. C. H. Maxwell was summoned to visit the decedent, who was still at the defendant’s home. He found Lewis upon his knees and arms on the floor and his head was on the floor. The man was;
T. 'L. Langley, a witness for the State, testified in part as follows : He went down to the home of the accused. The wife of the defendant had come to his house, and two of the defendant’s children came a few minutes ahead of her. At the request of the wife of the- accused Langley went for a physician. When he returned to his home he found the defendant standing in the hall. The latter had a piece of lightwood in his hand. (The piece of wood was produced in evidence.) The defendant requested Langley to go down to the house with him and see if he knew the man whom he had hit. He said it was an old man, he did not know who it was; that he came into the house, pushed the door open, walked in there on them, and he took this piece of wood and fired- in on him and gave him considerable beating. “He told me he beat him right sharp while he had been down there, and that he didn’t know whether- he had killed him, and he said if he hadn’t killed him and I said so, he would go in and finish it. I said, H don’t say so; I expect you have [done] too much already.’ We went in and looked at the old man, who was between the door and the fireplace. . . I saw nothing around the body of Mr. Lewis but blood. There was a puddle about two feet square, and it had run down in the other room. While we were dressing the old man’s wounds, the defendant said if he had known it was old man Lewis he would not
Mrs. T. L. Langley, sworn as a witness for the State, testified: The accused came to their house and inquired for Mr. Langley; said he wanted to see him. She told him to- go back to his home, and her husband would be there. The defendant replied that he didn’t want to go back until Mr. Langley came, and would go back with him. The accused had “a billet of wood” in his hand, which had blood on it. He turned to his wife and said he had not beat him none when she left to what he had after she left; that he beat him to his satisfaction. She further testified that he did not appear to be drunk. A piece of wood, identified by the witnesses as that which was carried by the defendant to T. L. Langley’s, is about 18 inches long and about three inches thick, triangular shaped.
The defendant introduced evidence tending to show that the decedent had an open knife. Louise Bryant, the daughter of the defendant, ten years old, was sworn as a witness for the defendant. She testified that Lewis came home with her father; that he stayed at their home till about dark; and further, to quote a part of the witness’s testimony in her own language: “Mr. Lewis stayed there a good while. He stayed until about dark, when he left, I saw father hit a man there that night. I did not know who the man was. We were fixing to go to bed, the fire was nearly out, and the lamp was turned down. Mother and father were sitting by the fire. The man did not knock on the door. The first I saw of him he was standing in the door with a knife in his hand. Mother hollered, and father said, ‘I’ll have to do something,’ picked up a piece of wood and hit him. Mother said, ‘Look there,’ and Papa said, ‘I’ve got to do something, or he’ll hurt us,’ and picked up a piece of wood and hit him and knocked him up side of the door, and Mama told me to go to Mr. Langley’s and get him to come down there and help us. I went to Mr. Langley’s, and then Mama came and got Mr. Langley to go for the doctor. Papa came up
The defendant made a statement in which he narrated the circumstances leading up to the decedent’s accompanying him home and what took place while he was there, up to the time the decedent was about to depart; and he continued: “As he started to go he asked me if I had anything to drink, and I told him, yes, I had a little corn beer, and he drank two glasses of corn beer and I drank one, and me and him was sitting there in front of the fireplace and talked, and he put in and was spitting on the floor, and I says, ‘Mr. Lewis, I rather you not be spitting on the floor,’ and he told me if I didn’t want.him to spit on the floor he would go home, and I told him, well, I would rather he would go home than to be spitting on the floor; and Mr. Lewis got up then. I reckon it was just about dusk dark. He got up to go home, and he was gone and gone and gone, and I thought he had gone home; and I suppose it was about eight o’clock when he came back, and when he come in I was sitting by the wood-box in one corner of the room with my back to front door, and my wife was sitting over ón the other side of the fire, and two of my little children was' sitting in front of the fire; and when Mr. Lewis come in, didn’t anybody know he was on the place. He didn’t knock before he', come in; when he come in he opened the door, and the first thing I knowed he shoved the door open, and he had a knife drawed back in his right hand. I had my back to the door, and whenever he shoved the door open and my wife saw him with the knife drawed back in his hand, she screamed and says, ‘Ira, somebody is coming on you with a knife,’ and about that time I got up, and I had this-' piece of wood in my hand and he was coming on me with the knife,' and I struck him side of the head and knocked him up side of the wall, and when I knocked him down he got on his hands and knees like he was going to get up, and I says, ‘Don’t you get up, d<>" you get up,’ and he was getting up and I hit him on the bad the head. I don’t know whether my wife was there when 1 him the second time or not, but when I hit him the first time ■ two children went out of the house to go to Mr. Langley’s. When I hit Mr. Lewis he was coming right on me with a knife, and when I hit him I knocked him up side of the walls and his head fell over in the dark, and when I hit him he fell on his face, and
Grounds one and two of the amended motion for new trial assign error upon the failure of the court to charge the law upon the subject- of involuntary manslaughter. There was no request , to charge upon this subject, and we are of the opinion that whether the homicide was involuntary manslaughter or not is not raised by the evidence in the case. If it would have been appropriate, under the statement of the prisoner, the failure to give the charge, in the absence of a request therefor, is not error. We do not overlook the fact that there are certain decisions, like that of Joiner v. State, 129 Ga. 295 (58 S. E. 859), Dorsey v. State, 126 Ga. 633 (55 S. E. 479), and Jordan v. State, 124 Ga. 780 (53 S. E. 331), in which it was held that where the accused struck the deceased with a weapon suddenly snatched up, which is not necessarily a weapon likely to produce death, the law of involuntary manslaughter was involved. There are several other cases following the cases mentioned, which we have not cited. But it will be found in most of them that the accused suddenly seized the weapon and struck one or two blows with the same. In some of them the blows were struck hastily in the course of a fight between the accused and the deceased. All of them differ in essential facts from the present
But in the case of Thornton v. State, 107 Ga. 683 (33 S. E. 673), this court held that under the evidence in that case there was reasonable theory upon which the defendant could have based his comention that if he was guilty of any crime at all it was involuntary manslaughter. From the record in that case it appears that' the accused killed his wife; he beat her violently, and she ran from the house after a severe blow was inflicted upon her head. The defendant struck her with a rock and knocked her to the ground. She arose and endeavored to escape, and finally some one came to
The rulings made in headnotes 2, 3, and 4 require. no elaboration.
Error is assigned upon the following charge of the court: “It [the verdict] should be voluntary manslaughter if the surrounding circumstances were such only as to excite the fears of a reasonably courageous man that some serious bodily harm less than a felony was intended or might accrue upon the accused.” It is contended that this charge is erroneous, standing as it does, “without also at the same time instructing the jury that the defendant had the right to eject the deceased from the defendant’s home, and that he had the right to use whatever force was necessary to successfully accomplish the ejection in case the deceased resisted.” The charge is correct as applied to one theory of the case presented by the evidence; that is, that' the decedent was about to make an assault upon the accused. If in the prospect of such an assault the accused, acting under the fears of a reasonable man that a felonious attack was about to bé made upon him, and the circumstances were such as to justify those fears, then the killing of the decedent would have been justifiable. But if the circumstances did not justify the fears of a reasonably courageous man that the attack was one felonious in its character, but that it was an assault upon him in which a serious injury less than a felony was being attempted, then the homicide would be reduced to voluntary manslaughter. If the defendant had desired instructions to the jury as to the right of the accused to eject the decedent from his house and the degree of force which he might use in doing this, he should have requested a charge upon the subject, and the court then might have given the charge, if in the opinion of the court there was any evidence to authorize it. But it does not appear to us that there was any effort made by the accused to eject the decedent from his house; for he almost immediately struck him with a piece of wood in his hand,, felled him to the floor, and then beat him until a mortal wound was inflicted.
Judgment affirmed.
Dissenting Opinion
I dissent from the judgment of affirmance solely upon one ground. There is, in my opinion, evidence in the ease, which, if credible to the jury, might have authorized them to find the defendant guilty of involuntary manslaughter, that is, that the blows were inflicted without any intention at the time to kill. The charge upon ■ voluntary manslaughter (which necessarily includes an intention to take human life) does not obviate the necessity, where there might be a conviction for involuntary manslaughter, to charge upon the latter subject because the latter relates to a killing where such a result was not intended. In my opinion, as ruled in Kelly v. State, 145 Ga. 210 (supra), in any case where a jury, considering the nature of the weapon used and all and any of the attendant circumstances in the assault which produces death, might find from any of the testimony that the defendant had no intention to kill, the law of involuntary manslaughter should be given and the question submitted to the jury for their determination. In the present ease, personally, I believe from the evidence that the defendant did intend to kill; but that question is not for a court but for the jury, and wherever involuntary manslaughter is involved they should be instructed upon the law applicable thereto.