172 Ga. 500 | Ga. | 1931
Under the foregoing evidencie, the jury were authorized to find the. defendant guilty of murder.
Error is assigned because the court failed to give in charge to-the jury section 71 of the Penal Code, as follows: “A bare fear
Error is assigned also because the court failed to charge section 73 of the Penal Code, as follows: “If a person kill another in his defense, it must appear that the danger was so urgent and pressing at the time of the killing, that, in order to save his own life, the killing of the other was absolutely necessary; and it must appear, also, that the person killed was the assailant, or that the slayer had really and in good faith endeavored to decline any further struggle before the mortal blow was given.” It is insisted that the evidence required the charging of that section. But no evidence in the record is pointed out by plaintiff in error to sustain that contention, and we find none that would authorize or require .such a charge to be given. Under the evidence for the State, a case of murder was made out. According to the State’s witnesses, somebody pulled the deceased in the alley where the homicide occurred; other witnesses testified that they saw the deceased go in the alley and saw the accused follow him in there; according to other witnesses for the State they heard the defendant say he was going to kill the deceased before the sun went down; and according to another witness defendant asked him if the deceased was dead, and the witness replied that he was. The witness testified positively that the coat of the accused was not cut at that time, and that the accused said: “I am gone; none of you all seen me.” There was no evidence showing mutual combat or mutual altercation between the defendant and the deceased. Section 73 of the Penal Code is applicable only in cases of mutual combat. Parks v. State, 105 Ga. 242 (3) (31 S. E. 580); Glover v. State, 105 Ga. 597 (31 S. E. 584); Lamp v. State, 164 Ga. 57, 59 (137 S. E. 765), and cit. The court did not err in failing to charge section 73, and the defendant was not harmed by such failure. To have charged section 73 would have put a greater burden on the defendant than the law required. After an examination of the entire record in the case, we reach the conclusion that the accused had a fair and impartial trial, and that the jury was authorized to find the verdict of
Judgment affirmed.