47 Ga. App. 660 | Ga. Ct. App. | 1933
The opinion of the majority of the court is as follows: The evidence discloses that the violence of the deceased and the provocation of the defendant were equally serious. The defendant started the difficulty by making a felonious assault upon the deceased, and thereupon the deceased defended himself by cutting the defendant. Both cut each other with knives. Under these facts it clearly appears that the resentment of the deceased was not disproportionate to the provocation of the defendant.
In the opinion of the majority of the court, the evidence amply authorized the verdict, and none of the special grounds of the motion shows cause for a new trial. The writer can not agree to the foregoing decision.
The indictment in this case charges that on July 14, 1932, in Fulton county, Georgia, Cleve Creamer murdered Mack Bennett “by then and there cutting, stabbing, and wounding him with a knife.” The jury trying the case returned a verdict of voluntary manslaughter, and the exception here is to the judgment overruling the motion for a new trial.
The fatal rencounter took place at about four o’clock on the afternoon of Sunday, August 7, 1932, at an apartment house located on Decatur Street, in Atlanta, Fulton County, Georgia, where the defendant and Mary Bennett were living as man and wife. Mary was the niece of Mack Bennett, the deceased. All the parties were negroes, and Mary was called Mary Creamer, and there is no reason to suspect that Mack Bennett or any of the other negroes thought any the less of Mary and the defendant because they had never been legally married. Mack Bennett had frequently visited his niece, and was visiting her home on the day he was killed.
Fannie Jordan, sworn for the defendant, substantially testified: that she lived with the defendant and Mary in their three-room apartment; that on the afternoon of the homicide the defendant, Mack Bennett, and Ossie Bennett were eating watermelon in the kitchen of said apartment, while witness, Alice Green, and. Mary were in the front room; that the defendant left Mack.Bennett and
Lillie Thomas, sworn for the State, testified in part as follows: “I heard cursing and looked out of the window and seen Cleve standing in the door. Mack was sitting in a chair on the porch, and he was standing behind Mack. Mack had a baby in his arms. Cleve was standing up behind Mack. I heard Cleve curse. He told Mack if he moved he would cut his head off. Mack stayed in the chair. Finally that woman came and got her baby, and they argued a good while. When he jumped up Cleve cut him. After I saw Cleve cut Mack . . I did not see any more. I saw Cleve when he came down the steps and went toward Decatur Street. He was as bloody as he could be. . . I saw him [defendant] hit Mack in the neck. I mean to tell the jury that I saw this man strike the first lick. I did not see any blood come from his neck. . . He [the deceased] had done jumped up out of the chair. Cleve did not cut him before he jumped up.”
Annie Binns, sworn for the State, testified, in substance, that she heard the defendant and Mack Bennett arguing, and went to get her baby; that she saw Mack sitting down on the porch with her baby in his lap, and the defendant standing by the door with an open knife in his hand; that when witness patted the defendant on
In special ground 1 it is urged that the court erred in refusing to give the jury a requested charge. The first part of this charge is in the exact language of the first headnote of the case of Sams v. State, 124 Ga. 25 (52 S. E. 18), which reads as follows: “One who provokes a difficulty may yet defend himself against violence on the part of the one provoked, if the violence be disproportionate to the seriousness of the provocation, or greater in degree than the law recognizes as justifiable under the circumstances.” The remainder of the requested charge is a concrete application of this principle of law. There is no question as to the correctness of the charge requested, and the only question presented is whether or not the facts of the case warranted the charge. I have not set out the testimony of all the witnesses, or all the testimony of any witness. However, I have gone into the evidence at some length in order to show whether or not this ground is meritorious. According to evidence adduced in behalf of the defendant, Creamer, Bennett and another negro were eating watermelon in the defendant’s kitchen, when the defendant went into an adjoining room and threatened to throw a smoothing-iron at Bennett’s niece. Hearing this threat, Bennett remarked to one of the party (not the defendant) that if Creamer struck Mary with the iron, he, Bennett, would cut his damn head off. After making this conditional threat, and without disclosing any intention to carry it out, Bennett went out on the porch, sat down in a chair, and took a baby in his lap. Whether or not Bennett intended that the defendant hear his conditional threat does not appear from the record, but it does appear that the defendant did hear it, and that he was exasperated because of it, for he followed Bennett out on the porch, and, according to the State’s witness, Lillie Thomas, cursed and threatened to cut Bennett’s head off if he moved. According to testimony presented in behalf of the
Judgment affirmed.