26 S.E.2d 606 | Ga. | 1943
1. An essential ingredient of mutual combat is a mutual intention to fight; but where all of the evidence, including the defendant's statement, shows no agreement or mutual intention, that the defendant was armed with a loaded shotgun, and that the deceased was not armed, had made no threats, and was making no effort to feloniously assault the defendant, mutual combat was not involved; and the judge did not err in omitting to instruct the jury on this theory of voluntary manslaughter.
2. Where the verdict is supported by the evidence, the general grounds of the motion for new trial challenging the sufficiency of the evidence to warrant the verdict are without merit.
The defendant made a statement which agreed with the State's evidence as to the first meeting at the lunch-stand, except that he stated that Nash picked up a stool and manifested an intention to strike him with it, that Bennie Roy Ector made a statement or threat against the defendant after he and Nash went into the yard; whereupon the defendant ran and went home. He stated that he obtained his gun at his home and was going back to the lunch-stand to get a pair of pants that he had previously left there; that on his way he accidentally discharged the gun, then reloaded it, and as he was approaching he heard the wife of Nash say, "Albert, come on and let's go home," and that Nash replied, "No, you see that boy with that gun? I don't give a damn, the black son of a bitch can't do nothing but shoot;" that Nash had something in his hand that looked like a razor, that he then started towards the defendant with his hands in his pockets; that the defendant backed and Nash continued, and the defendant shot him. The defendant then went in the lunch-stand and got his pants. He went behind "Miss Lizzie's" house. He saw the wife of Nash kneel by him. Nash still had his hands in his pockets, and some one told her not to touch him until the police came, and some one else said, "It is this *290 woman's husband." Bennie Roy Ector told the policemen he would show them where the defendant went. The defendant just ran across the road where they would not see him. He was in the back yard at home when the officers went in, and he went in there. He stated, that Nash did not have his hands up, as testified by the State's witnesses; that Nash was cursing him, and had both hands in his pockets when he fell; and that his wife took his hands out of his pockets and got something out.
The State's witness, Garfield Ray, testified that Albert Nash had nothing in his hands, was doing nothing to the defendant, and was not trying to do anything to him at the time he shot Nash. Ray did not see the wife of Nash go to the body after he fell. He saw her leave the place. He knew Johnnie Ray, who is his uncle; he visited him in the jail where he and the defendant were together; he did not talk to the uncle about this case, but the uncle asked him to be as light on the defendant as he could, and he replied that he was going to tell the truth; and he did not tell his uncle and the defendant that Nash's wife went to the body of her husband after he fell, got something out of his pocket, and left with it, and then returned before the officers got there.
Johnnie Ray testified, that he was in jail charged with murder; that his nephew Garfield Ray told him and the defendant in the jail that the wife of the deceased took something off the deceased, but that he did not know what it was, and that she left and then came back just before the officers got there.
1. The homicide did not result from the first encounter, nor is there a scintilla of evidence to show that at that time the defendant and the deceased mutually agreed to "fetch their weapons and fight." Hence the decision in Gann
v. State,
2. The verdict was authorized by the evidence, and the general grounds of the motion for new trial are without merit.
Judgment affirmed. All the Justices concur.