58 Ga. App. 637 | Ga. Ct. App. | 1938
Gamble was indicted for murder, and was convicted of voluntary manslaughter. He moved for a new trial and his motion was overruled and he excepted on the ground that the evidence did not authorize a verdict of voluntary manslaughter.
The evidence for the State made out a case of murder, and the evidence for the defendant, if believed in its entirety, would have authorized the jury to acquit the defendant. The jury could believe that portion of the defendant’s statement which said hot words passed between the defendant and the deceased, when the deceased used some insulting language in the presence of two white women in the restaurant, whereupon the defendant warned him about such language and the deceased applied to the defendant a violent and most insulting epithet. The defendant told the deceased Negro “Don’t talk to me that way,” and the defendant’s companion, Johnson, said to the defendant “Let’s go, let’s get out of here.” The defendant, in his statement to the jury, said that after this occurred the following happened: “I said,' ‘I will see the manager about the way that Negro was talking,’ walked right on around, and Yic [the manager] was standing right at the end of the counter there. I said, ‘Are you the manager?’ He said, ‘Yes.’ I said, ‘That Negro is using mighty bad words back there, insulting white people and everything else.’ He [the deceased] said, ‘You are a lying, white-faced s. o. b. I haven’t insulted anybody. What I said, it
It is “ ‘well settled that it is the prerogative of the jury to accept the defendant’s statement as a whole, or to reject it as a whole, to believe it in part, or disbelieve it in part. In the exercise of this discretion they are unlimited. Brown v. State, 10 Ga. App. 50, 54, 55 (72 S. E. 537).’ May v. State, 24 Ga. App. 379 (11), 382 (100 S. E. 797).” French v. State, 43 Ga. App. 97 (5) (157 S. E. 902). The jury could disbelieve that portion of the defendant’s statement which said: “I had to kill the Negro in self-defense, the only way in the world, I believe, I could save my life, but I am sorry that I did it.” If the jury did so, they would have been authorized to find, from the preceding part of the defendant’s statement and the other evidence, that this amounted to an assault or other equivalent circumstances which aroused a passion in the mind of the defendant and as a result of said passion so engendered, which passion arose from a just cause, that the defendant immediately shot and killed the deceased without cooling time. Dunwoody v. State, 23 Ga. App. 93 (97 S. E. 561); Dunwoody v. State, 149 Ga. 617 (101 S. E. 581); Plymel v. State, 164 Ga. 677 (139 S. E. 349); Booker v. State, 153 Ga. 117, 119 (111 S. E. 418); Pollard v. State, 124 Ga. 100 (52 S. E. 149); Smith v. State, 118 Ga. 61, 62 (44 S. E. 817). If will be noticed from the statement of the defendant that he did not declare that the deceased actually made an effort to use the butcher knife upon the defendant’s person, nor did the deceased make a threat to kill simultaneously with the picking up- of the butcher knife and the walking toward the defendant. There was no evidence that the butcher knife was a dangerous weapon, nor did
Judgment affirmed.