168 Ga. 843 | Ga. | 1929
While concurring in the judgment of reversal and the principles I have stated in headnotes 2 and 3, I dissent from the ruling stated in the first headnote as expressive of the opinion of the majority of the court. There is no substantial difference in the substance of the request for instruction presented
In Hall v. State, supra, Mr. Justice Holden, delivering the opinion of the court in a case very similar to that now before us, held: “The evidence showed that the deceased died from a wound inflicted with a knife. The defendant in his statement to the jury, among other things, stated in substance the following: He went to a house where the deceased was and told him-Mr. Singletary said for the deceased to stay away from there. Mr. Singletary had been talking to him, and told 'me to tell you to stay away from here.’ The deceased cursed the defendant, and said, ' I will burst your brains out; I will kill you.’ The deceased got a chair after the defendant and tried to kill him, and told Mm that he would see him again, that he was going to kill him, and said ' that he would see me again, and that he was going to kill me.’ The defendant went to Mr. Singletarjr’s, and while talking to him the deceased came up and the defendant hit him with a baseball bat, which the deceased took from him and hit the defendant on the arm several times. The defendant struck at him with a knife. The deceased wheeled around and struck. The deceased ran off a few steps and fell. The defendant further stated: 'I forgot, gentlemen, he had a knife; he was fixing to kill me with the knife —he had a knife in his hand — he tried to cut me with the knife —he had a good knife; that is the reason I had to do what I did; he tried to cut me — tried to kill me with that knife — had a good knife too — I had a little old sorry knife — couldn’t hurt nothing with it — yes, sir — he had a good knife.’ The statement of the defendant was susceptible of the meaning that the deceased had a knife, and to carry out his previous threat ' was fixing to kill ’ defendant with it when defendant struck Mm with the bat and stabbed him with the knife. The statement made by the defendant was such as authorized a charge by the court of the principles of law embodied in sections 70 and 71 of the Penal Code, and it was accordingly error for the court to refuse to give in charge the following, as set forth in a written request timely presented by the defendant’s counsel: 'If you believe from all the circumstances of the case that the situation was such as to excite the fears of a reasonable man, in the situation of the defendant,