164 Ga. 57 | Ga. | 1927
Sidney Lamp was indicted and tried for the murder of Clifton Powell by shooting him with a pistol. The jury returned a verdict of guilty, with a recommendation to the mercy of the court, and he was accordingly sentenced to the penitentiary for life. He filed a motion for new trial on the usual general grounds and five special grounds, which motion was overruled, and he excepted.
Ground two of the amended motion for new trial complains of the following charge of the court: “Mutual combat is a mutual purpose or intent on the part of the parties engaged to fight. It is a question for the jury to determine under all the facts and circumstances of the case, including the defendant’s statement, whether such mutual intention to fight existed or not. The court charges you that in case of mutual combat, 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. Before the slayer can be justified it must appear that he acted without malice, not in a spirit of revenge, that the deceased was the assailant, that in order to save his own life it was necessary to kill his adversary, or that he was under the pressure of other equivalent circumstances. He can not avoid the fearful responsibility by the bare fear or apprehension of danger; the danger must be urgent and pressing at the time. He must decide the momentous question with reference to his accountability to the law at the time,
Other headnotes do not require elaboration.
Judgment reversed.