Green v. StateGreen v. State
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2. “The unlawful killing of one who has given the slayer no provocation other than the use of words, threats, menaces, or contemptuous gestures can not be graded as voluntary manslaughter under the doctrine of mutual combat.
3. “Where the evidence introduced by the State made a clear case of unprovoked murder, and the evidence introduced by the defendant and his statement tended to establish that he killed the deceased in self-defense or under the fears of a reasonable man that the deceased was about to commit a felony upon his person, the judge did not err in refusing, on request of the defendant, to give in charge to the jury the law of voluntary manslaughter as related to mutual combat.” Johnson v. State, 173 Ga. 734 (2) (161 S.E. 590).
4. Under the foregoing principles as applied to the evidence and the defendant‘s statement, the offense of voluntary manslaughter was not involved, and the court did not err in refusing to charge on that offense.
5. The direct and circumstantial evidence was sufficient to identify the gun and shells as the instruments used by the defendant in committing the homicide, and it was not error to admit them in evidence. Boynton v. State, 115 Ga. 587 (2) (41 S.E. 995).
6. While a dying declaration of the person slain may be subject to impeachment, under the facts of this case the evidence that deceased “brought” a witness some liquor on the day of the killing did not appear to be relevant for that purpose; nor was it admissible to show violent character of the deceased, as contended.
7. The evidence authorized the verdict; and no error of law having been committed, it was not error to refuse a new trial.
Judgment affirmed. All the Justices concur.
Dock H. Green was convicted of murder in the killing of Jack Looney, and was recommended to mercy. His motion for a new trial was overruled, and he excepted.
The evidence for the State showed that the defendant resided in the home of Mr. and Mrs. Looney, being employed as a farm laborer; that on a Sunday in February, 1942, Looney after finishing dinner left the defendant and others at the table, and went out into the yard for some purpose; and that when he returned and went into the house, persons about the place, including Mrs. Looney, heard the report of a shotgun. Mrs. Looney testified, in part, as follows: “I was in the chicken house [feeding the chickens]. Jack just walked back towards the house. He didn‘t have anything in his hands that I could tell. It couldn‘t have been more than two or three minutes after he passed the window [of the chicken house] until I heard the shot fire. I did not see the shot fired, I heard it. I did not hear any one make an outcry. When I heard the shot I set down my feed and went to the door and went back and broke and run into the house. I don‘t expect it took a minute from the time the shot fired until I reached the house. I found my husband on the back porch. He was sinking down on the porch. I was the first person to him after he was shot, and I arrived there in less than a minute after the shot was fired. When I reached him he said, `Dock shot me.’ . . He said he was bleeding to death and he was going to die. He told me to sell all he had, it was enough to take care of me all my life if I would take care of it and let nobody take it. When I got him on the porch, he said, `May, Dock shot me; what he done it for I don‘t know, for I was the best friend Dock had, and I thought he was my best friend,’ and says, `Where you find my pipe at the door was where he shot me, and I am dying.’ I found the pipe laying just inside the living-room door. When he was shot he was in the front room
Other witnesses testified to the same general effect. It appeared from some of the evidence that the defendant and the deceased, with other men, had walked about the farm in the forenoon, going “over into the woods about an old sawmill place,” and that they “got some liquor.” There were no eye-witnesses to the immediate act of the homicide.
The defendant‘s statement on the trial was as follows:
“Well, gentlemen, you are already aware of the fact that I was staying with Jack Looney, and on the 21st of February, in the afternoon, I told Jack that I was going to quit the following week, about the first of the week, and try to get in the army, because they had been refusing me on account of my teeth — at that time the requirements were very rigid about teeth, but since then they lowered it. I went to Flowery Branch that afternoon late, and I came back to Walter Cantrell‘s house, and he lived alone as a bachelor I believe, and I stayed awhile with him and told him I believed I would go back to Looney‘s, and he says `Don‘t go; just stay until morning, I am going back to get some more whisky.’ We woke early the morning of the 22d, and went down to Mr. Looney‘s house I imagine about seven-thirty, and Mr. Looney invited Walt in to have breakfast, and if I am not mistaken he drank a cup of coffee, I don‘t believe he eat any, and Mr. Looney went out to the chicken house and asked me if I would water and feed the mules, and I told him all right, I would feed and water the mules, and I was behind the barn, and when I got back Bannister and Looney was out at the chicken house, and Jack walked out, and we was out there about an hour, that would have made it about eight forty-five, and Walter Cantrell told him, Jack Looney, he wanted some whisky, and he said `I haven‘t any at the house, we will have to go to my thicket and get it,’ and says, `Jim, you want to go with us.’ So we went over to the old sawmill stand on Jack Looney‘s place, and he says `You fellows wait a few minutes,’ and we was there about five minutes, and he came back and let Walter have what he wanted, and he says `You can have more if you fellows want it,’ and we
“And Walt and myself finished eating and went into the livingroom and set down, and Walt asked me if I would roll him a cigarette, and I did. He was drinking pretty heavy, in fact he was drunk. And I rolled him a cigarette and lit it for him, and he got up and walked out, and I got to thinking, `Jack is already mad, and Walter is drinking,’ and Jim he was drinking, and the Sunday before I had been down to Charlie DeLong‘s — I had been so sick on Christmas — and pay him some money I owed him, and I thought I would go and not come in contact with Jack because I knew when he was drinking and mad he was a violent man and he would kill you because he had the most violent temper I ever saw a man and the best fellow when he wasn‘t mad; and I started out the back door, and Jack stepped up to the well in the back yard
“After I went back in the room I thought Jack took usually forty or forty-five minutes to water and feed the chickens, and I thought, `He will go back to the chicken house, and I will leave.’ And I was up there a few days before then, and Mr. Cliff Parsons says, `Jack you take awful unnecessary chances going in the woods all times of the day and night with all that cash money; you carry money all of the time, and somebody is going to harm you.’ So after Mr. Parsons left Jack Looney told me he says, `You know I have been thinking of what C. R. told me.’ He says, `I do take chances, and some fellows will think I have got money and kill me, and I am going to take my pistol all of the time,’ and I saw him with the pistol, and he told me he had another, and I did not know who he got it from. I started towards the door when I heard someone tip-toeing between the living-room where I was at and the kitchen, and I looked, and it was Jack Looney coming across the floor on his tip-toes, and I knew he was coming for me because of what he said out at the well. I don‘t know who he was asking where I was at, and I was scared and excited, and I started towards the door that leads into another room to get out the front door, and that door was closed, and there was no door knob on that door, and it is very hard to get open sometimes — he always kept the front door locked, and I turned around towards the front towards where there was a window with the intention of getting out the window and getting away some way; and when I went around the corner of the bed — it was sitting angling across the room — when I went around the foot of the bed I saw three guns on the wall, and I
“Mrs. Looney said in her statement that was her revolver, but
The defendant requested a charge on voluntary manslaughter as related to mutual combat, and the refusal of such request was assigned as error in his motion for a new trial. Another complaint was that the court admitted in evidence a double-barrel shotgun and two shells, one empty and the other snapped, over objection that they had not been sufficiently identified. The third and final complaint was that the court erred in excluding the following testimony of one of the State‘s witnesses on cross-examination: “The deceased was the person who brought me some liquor on