Fennell v. State

164 Ga. 59 | Ga. | 1927

Atkinson, J.

The rulings announced in the first and third headnotes do not require elaboration.

In all cases of voluntary manslaughter, there must be some actual assault upon the person killing, or an attempt by the person killed to commit a serious personal injury on the person killing, or other equivalent circumstances to justify the excitement of passion, and to exclude all idea of deliberation or malice, either express or implied. Penal Code (1910), § 65. An assault is an attempt to commit a violent injury on the person of another. Penal Code (1910), § 95. Mere preparation to commit a violent injury upon the person of another, unaccompanied by a physical effort to do so, will not amount to an assault. Brown v. State, 95 Ga. 481 (20 S. E. 495); Williams v. State, 99 Ga. 203 (25 S. E. 681); Penny v. State, 114 Ga. 77 (39 S. E. 871); Groves v. State, 116 Ga. 516 (42 S. E. 755, 59 L. R. A. 598); Shubert v. State, 127 Ga. 42 (55 S. E. 1045). An assault may be found in a mutual combat where both parties intend to engage in the fight. Ison v. State, 154 Ga. 408 (114 S. E. 351); Slocumb v. State, 157 Ga. 131 (121 S. E. 116); Boatwright v. State, 162 Ga. 378 (134 S. E. 91). On careful examination, the evidence in this case, considered in connection with the prisoner’s statement, fails to show a direct assault upon the defendant by the person killed, or mutual combat between the parties from which an assault might be found, or any attempt on the part of the person slain to commit a serious personal injury upon the defendant, or other equivalent circumstances to justify the excitement of passion, and to exclude all idea of deliberation or malice, either express or implied. In the circumstances the question of voluntary manslaughter was not involved. This being so, the charge upon the law of voluntary manslaughter as complained of in the fourth ground of the motion for new trial, though not entirely accurate and somewhat confused in the language employed, was not cause for a reversal of the judgment refusing a new trial, for the reason, as contended, that it “confused the jury on the law of voluntary manslaughter.”

Judgment affirmed.

All the Justices concur.