154 Ga. 390 | Ga. | 1922
Robert Lee Jordan was convicted of the murder of Elmore Whitsett by shooting with a pistol, and, on recommendation of the jury finding him guilty, was sentenced to life imprisonment in the penitentiary. The exception is to a judgment refusing the defendant a new trial. The only special grounds of the motion for new trial complained, first, of the admission of certain evidence; and second, of the failure to charge Penal Code section 40, relating to “misfortune or accident” as a defense to a charge of murder. Other facts will sufficiently appear in this opinion.
It appears from the evidence that the homicide occurred late in the afternoon at a picnic held at a sehoolhouse. The defendant and the deceased were boys about 17 years of age. Mike Cobb, a witness for the State, testified that they became involved in a fight over a dispute as to which one of them should go home with a woman; that the defendant hit the deceased with his fist, and the latter returned the blow; after they had been figthing with their fists about five minutes the defendant pulled his pistol out of his pocket with his right hand; the deceased grabbed the pistol and pushed it off from him, and “ after they knocked about five
As the judgment refusing a new trial will be reversed on account of the error above pointed'out, it is unnecessary to deal with the question of the sufficiency of -the evidence to support the verdict.
Judgment reversed.