185 Ga. 408 | Ga. | 1938
Lead Opinion
Arthur Perry and Arthur Mack were jointly indicted for murder of Charlie E. Helton by cutting and stabbing him with a knife or other sharp instrument to the grand jurors unknown. On separate trial of Perry the evidence tended to show the following: An industrial institution in the City of Columbus gave a barbecue at the fair grounds, to which all its employees and their families were invited. The guests assembled at 7:30 p. m., and left about one o’clock a. m. Separate places were provided for whites and blacks, the whites being assembled in the large “ exhibit building,” and the blacks being outside near “the other brick building,” all in the same enclosure. The rencounter took place down behind the “ cattle barn.” Helton, an employee of the company, was placed temporarily in charge of the equipment and materials left over at the conclusion of the affair. He was also a deputized police officer and carried a pistol. He engaged Ben McMurray, whom he called “Boy,” to assist him in looking after the company’s property. McMurray gave the following account: “After the crowd left the fair grounds, me and Mr. Helton, Essie [Thomas], Mackie Hudson, Arthur Perry, and Arthur Mack remained there. . . I heard Mr. Helton ask
1. If on a trial for murder the evidence tends to show that the defendant committed the homicide “in self-defense, or in defense of . . person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony on” him (Code, § 26-1011), and “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 . . 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” (§ 26-1014), such evidence would present the defense of justifiable homicide; and it would be the duty of the
2. If in such ease there “be some actual assault upon the person killing, or an attempt by the person killed to commit a serious personal injury on the person killing, or other equivalent circumstances to justify the excitement of passion, and to exclude all idea of deliberation or malice, either express or implied,” and the kill'ing is “the result of that sudden, violent impulse of passion supposed to be irresistible,” and there has not “been an interval between the assault or provocation given and the homicide, of which the jury in all cases shall be the judges, sufficient for the voice of reason and humanity to be heard,” the offense would be voluntary manslaughter. Code, § 26-1007. Williams v. State, 125 Ga. 302 (54 S. E. 108), and cit.; Plymel v. State, 164 Ga. 677 (139 S. E. 349).
(а) In such case an assault may be found in evidence of a mutual intention to fight. Ray v. State, 15 Ga. 223; Gann v. State, 30 Ga. 67; Findley v. State, 125 Ga. 579 (3) (54 S. E. 106).
(б) Where there is evidence of voluntary manslaughter, it is the duty of the judge to give in charge to the jury the law on that subject, even without a request. Kimball v. State, 112 Ga. 541 (37 S. E. 886).
3. Under the testimony of McMurray, witness for the State, the issues of both justifiable homicide and voluntary manslaughter were presented for determination by the jury. Evidence of justification or mitigation may come from the State’s witness offered to prove the killing or it may come from evidence offered by the defendant. Smarrs v. State, 131 Ga. 21 (2) (61 S. E. 914); Mann v. State, 124 Ga. 760 (53 S. E. 324, 4 L. R. A. (N. S.) 934).
4. “ Where under the evidence in the trial of a criminal case the law of voluntary manslaughter is clearly involved, it is the duty of the court to charge the law upon that subject, and he is not relieved of this duty by the mere fact that counsel for the accused in his argument to the jury insists that the law of voluntary manslaughter and of mutual combat is not involved in the case.” Andrews v. State, 134 Ga. 71 (67 S. E. 422); Vincent v. State, 145 Ga. 293 (89 S. E. 203); Hill v. State, 147 Ga. 650 (3) (95 S. E. 213).
(6) The case differs from Threlkeld v. State, 128 Ga. 660 (58 S. E. 49), Hill v. State, 147 Ga. 650 (95 S. E. 213), Brown v. State, 150 Ga. 756 (105 S. E. 289), and similar cases in which the attorneys, in response to direct questions, induced the court to omit to charge, and the omission was complained of in the motion for new trial; and it was held that the defendant was estopped by such conduct of his attorney from complaining of such omission to charge.
5. The error in omitting to charge on the law of justifiable homicide and on the law of voluntary manslaughter requires a reversal of the judgment refusing a new trial.
Judgment reversed.
Dissenting Opinion
dissenting. Although the defendant in his statement did not claim justification or mitigation in the commission of the homicide, but on the contrary negatived any such defense by denying that he was the person who did the killing, it is nevertheless true, that, upon it being shown by the State’s evidence that the defendant was in fact the perpetrator, he was entitled to the instructions the omission of which is complained of, if under any of the evidence facts or circumstances of justification or alleviation appear. There was no witness to the beginning of the actual encounter save the defendant and his jointly indicted alleged accomplice, who did not testify. TIpon proof of the homicide, a presumption of murder arises against the perpetrator, unless circumstances of alleviation, excuse, or justification are shown. Turner v. State, 139 Ga. 593 (3) (77 S. E. 828); Mann v. State, 124 Ga. 760 (supra); Anderson v. State, 122 Ga. 175 (50 S. E. 51); Delk v. State, 135 Ga. 312 (69 S. E. 541, Ann. Cas. 1912A, 105); Lively v. State, 178 Ga. 693, 698 (173 S. E. 836). In my opinion no such circumstances appeared in this case. Certainly it would not seem that the evidence for the State as to the circumstances prior to and leading up to the homicide in any wise tended to suggest that the deceased was then or might have been subse
This testimony, in my opinion, fails to throw any light on whether the defendant who did the killing or the deceased who