May v. State

24 Ga. App. 379 | Ga. Ct. App. | 1919

Lead Opinion

Broyles, C. J.

The last headnote alone needs elaboration. While there was no eye-witness to the homicide, the defendant in his statement to the jury admitted that he killed the deceased, under the following circumstances, as narrated by him: The deceased came into the defendant’s office in the bank of which the defendant was cashier, and demanded that he sign a certain paper, which was a release by the bank of certain assets of the deceased held as collateral security. The defendant refused to do this; and upon his telling the deceased that he was going to leave the building, the deceased said, “No, you are not going to leave this building until you sign this paper.” The defendant then closed the doors of the bank’s vault, and as he backed out of the vault and was closing the “gate” of the vault he heard the deceased behind him. What then occurred was stated as follows: “He came up and he says,—the words I heard, he says, ‘God damn you, you have ruined me and I will fix you, . . and I turned around, and he was coming to me just in this position (illustrating); I was standing there at that end of the door, that little gate, fixing to pull it in, and I looked back and the picture I' saw of Mr. Richardson was that piece of iron,—of course I will call it a crank,—I did’nt know at the time what it was, but he had this piece of iron and he made this threat, and he was just in this position, as best I remember, and he had made this threat, and he was right on me then practically close enough to hit. I have had a lot of tussles with Mr. Richardson. He was an athlete, he was an awfully strong fellow, anybody will tell you that, and when he came on to me like that, of course, I could’nt see anything but death. I jumped back as far as I could into that vault door; it was the only way of escape. This door here I could’nt have gotten out there, and I went back into the vault door as far as I could and I remember falling back in there, and I remember shooting one time. Now, when I shot Mr. Richardson he was just in this motion, and the picture I drew of Mr. Richardson after I shot one time went around this way over that desk, that slanting desk, and as I say, just as I shot the first time, and he in this position (indicating), the last picture I saw of him he went right over this Avay, and of course I don’t remember anything about the shots.” The defendant further said in his statement that he told the first person that came into the building after the homicide, “Mr. Deese, I have had to kill Mr. Kichardson, I says ‘he was trying to kill me, and I had to kill him in defense of my own life.’ ” The evidence showed that an automobile crank was found, shortly after the homicide, on the floor near the body of the deceased.

It is well settled by numerous rulings of the Supreme Court and of this court that the law of voluntary manslaughter may properly be given in charge to the jury on the trial of one indicted for murder, where, from the evidence or from the defendant’s statement to the jury, there is anything deducidle which would tend, to show that he was guilty of manslaughter, voluntary or involuntary, or which would be sufficient to raise a doubt as to whether the homicide was murder or manslaughter. Reeves v. State, 22 Ga. App. 629 (97 S. E. 115). It is likewise well settled that it is the prerogative of the jury to accept the defendant’s statement as a whole, or to reject it as a whole, to believe it in part, or disbelieve it in part. In the exercise of this discretion they are unlimited. Brown v. State, 10 Ga. App. 50, 54, 55 (72 S. E. 537).

Under the above rulings the jury were authorized to disbelieve the following part of the defendant’s statement (which was really* an argument and a conclusion on his part): “And when he came on to me like that, of course, I could’nt see anything but death.” The jury were also authorized either to reject that part of the statement which showed that the defendant stated to a third person, some time after the killing, “I have had to kill Mr. Eichardson, I says, ‘he Avas trying to kill me, and I had to kill him in defense of my OAvn life;’ ” or, if they believed he had made this self-serving declaration, to disbelieve the truth of it. With these portions of the defendant’s statement eliminated, the remainder of the statement authorized the jury to infer that, or at least made it a doubtful question whether, the defendant killed the deceased without any malice, either express or implied, and not under the fears of a reasonable man that a felonious assault was about to be committed upon him. The evidence did not show that the automobile crank which the defendant alleged the deceased used in the assault was a weapon likely to produce death, but merely that it was a weapon with which death could be produced. However, conceding (but not deciding), as argued by able counsel for the plaintiff: in error, that this court should take judicial cognizance of the fact that an automobile crank is such a weapon as would likely produce death, the defendant’s statement (the evidence is silent on this question), as disclosed by the record, does not demand a finding that the deceased, at the time of the assault, was using this weapon in a way calculated to talce human life, or in such a manner as would arouse the fears of a reasonable courageous man that a felonious assault was about to be committed on him. The record does not disclose how or in what manner the deceased attempted to use the weapon. The deceased made no threat to kill the defendant, or to commit a felony upon his person, the only threat being that he was going to “fix” him. The record is 'silent as to what the defendant meant by the word “fix.” Was he going to “fix” the defendant by killing him, or committing a felony upon his person, or by merely giving him such a beating as would not have amounted to a felonious assault. While it is probably true that the jury were authorized to infer that the deceased, by his threat to “fix” the defendant, meant that he intended to kill him, or to commit a felonious assault upon him, such an inference was not demanded. The portions of the defendant’s statement which the jury, as shown by their verdict) evidently believed, authorized them to find, that, immediately preceding the homicide, the deceased made an actual assault upon the defendant, accompanied by threats and menaces, but that the weapon employed by the deceased in making the assault (conceding that it was a weapon likely to produce death) was not being used by the deceased at the time of the assault in a way calculated to take human life; that the defendant, in killing the deceased, was not actuated by malice, either express or implied, but that the homicide was the result of a sudden and violent heat of passion aroused in the defendant by the unprovoked assault made upon him by the deceased. From what has been said it follows that the court was authorized to instruct the jury upon the law of voluntary manslaughter.

The verdict was authorized by the evidence and has been approved by the trial judge; no reversible error of law appears to have been committed on the trial; and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Bloodworth,, J., concurs. Luke, J., dissents.

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Concurrence Opinion

Luke, J.

I concur in every conclusion reached by a majority of the court, except the ruling announced in the last paragraph of the decision. I do not think that under the evidence the court should have instructed the jury upon the law of voluntary manslaughter.