Powell v. State

44 S.E.2d 285 | Ga. Ct. App. | 1947

1. The evidence and the defendant's statement authorize the verdict for voluntary manslaughter.

2. When we view the charge of the court as a whole, the assignments of error on the excerpt from the charge under special ground 1 do not require a reversal.

3. The court did not err in its charge on the principle of voluntary manslaughter regarding "provocation by words, threats, and contemptuous gestures" etc., in failing to charge the doctrine of reasonable fears.

4. The court did not err in refusing to give the written request to charge as set out in special ground 3.

DECIDED SEPTEMBER 23, 1947. Clyde Powell was tried on an indictment for murder and convicted of voluntary manslaughter. His amended motion for a new trial was overruled, and he brings the case here for review.

We deem it best to give briefly the evidence by the State and the defendant's statement. The defendant introduced no evidence.

The doctor introduced by the State testified that he lived across the street near where the homicide occurred. He was attracted by loud talking toward the county jail. In a few minutes he heard three pistol shots fired, close together. In about 30 minutes the defendant came to his house and requested the doctor to go out to where the man was shot. Powell stated to the doctor that he had some trouble with the deceased, Hayward Haynes, and that Haynes jerked loose from Powell, whereupon Powell shot towards the deceased into the air, to scare Haynes, and the last bullet must have hit the sidewalk and glanced off and hit Haynes. The doctor went to where the deceased was lying, which point was about 200 feet from where the men were standing who were engaged in the disturbance or commotion. The deceased was lying in the street, unconscious. He had been struck by a bullet about the hairline back of the head, behind the right ear. The doctor extricated the bullet the next day from over the left eye of the deceased. It was a .45 copper-jacket bullet. The deceased died from that wound. The defendant stated that he had trouble with the deceased and had him arrested. The defendant stated that the deceased was running. The doctor gave the street and place in detail where he found the deceased lying. The course of the bullet was upward. Upon recall and in rebuttal the doctor further testified that in his opinion the bullet wound at the place and of the nature received by the deceased, caused the deceased to be knocked down by it, and the deceased fell instantly.

The State introduced Carl Smith as a witness, who testified in substance that he was a resident of the City of Chatsworth, and that his residence is just a little east of the front entrance of the jail. In the opinion of the witness he was about 75 yards across the street from the jail. At about midnight on the date of the killing, the witness was at home. He had not retired. He heard some commotion across the street near the courthouse and the jail and stepped to the door. As he got to the door of his house he saw three men; all seemed to be running. One man stopped just in front of the steps going up to the jail. This man did the shooting. The other men ran out of sight of the witness. The witness observed the man who did the shooting. In the opinion of the witness, the defendant, Powell, did the shooting and it happened in the following manner: The shots were fired parallel with the sidewalk in the direction of the fleeing man. He could not discern any difference as to the level of the shots. Two of the shots were fired like pulling the trigger twice, and a pause was noticed before the third shot was fired. Three shots were fired by the same man from the same pistol and directed at the fleeing man. The shots apparently seemed to be fired from the hip. Powell was not shooting holding the gun high. The cross-examination of this witness is not materially different from his direct-examination, except that he went a little more into detail as to the movements of the man who did the shooting and the deceased who was fleeing and the third man whom the witness claimed came up "ran across and disappeared in the shrubbery at the jail." And shortly after this third man disappeared in the shrubbery of the jail a light came on inside the jail. The man who was shot ran west. All three of the men ran west. When the defendant started shooting he stopped, and he never ran any more after that. The witness did not see the deceased fall and did not know that he was dead until the next day.

The defendant at this point made a statement. After giving a brief history of his life he told of the homicide as follows: "Haywood Haynes came to me . . I had my car parked in a `V' shape in front of Emmett Cochran's station . . Haynes kept talking and I saw he was under the influence of liquor, and I tried to get him to go home, get off the streets before he did get into trouble, and so he wouldn't go, he kept cursing and going on, trying to sing a little jibe, sung bringing my name in it every time, so I put him under arrest, and started up the street, middle of the street. He kept saying `you will always regret this, you will always hate this, Powell, you will be sorry of this,' he kept coming over the same thing. I had him by his overall galluses. He had on a pair of overalls. I don't remember what kind of a shirt he had on; he had on a pair of overalls; I had him by his overall galluses, and my hand holding his wrist. We stepped up on the sidewalk to come up this sidewalk, one that comes up to the court-house. I always come that way with the ones I had. Always when we happened to make arrests in that end down there we would just use those steps. He slipped the guitar string over his head. It fell on my arm here. I released it and his wrist and the guitar started to fall. The next thing I knew I hit the ground. I heard he had been in the Army and he knew these tricks they teach as M. P.'s. We had a scuffle on the sidewalk. I grabbed for my blackjack; he always grabbed me by the legs, he grabbed for my blackjack at the same time. In the scuffle I managed to get the blackjack. He kept going over these same words `You will always hate this, regret this Powell' cursing. Whenever I get the blackjack in my possession, he tried to make a break from me, he pulled me up, shoved me back down on the sidewalk. I have had an operation at the base of my spine, which is very touchous and tender. The first time I hit the sidewalk I hit on the base of my spine, and the second time also. I was out of breath and exhausted. I knew I was no match for him. He wasn't near my size, nor near as tall, but comparison in weight, 10 years younger man than I am, I understand. When I hit back, when I got up, he had started off, hesitated out there just beyond the driveway that comes to the jail, looked around like he was hunting for a rock or something to come back after me. Well, I swing my 45, I was carrying it on my left side, I just done like that, and popped the bullet down on the ground, you know, shot it on the ground; the next instant, I pointed it in the air, I shot twice in the air, pointed upward, and I see him turn the corner of the street, and that is the last time I saw him. He turned at the corner of this street light, that is the last time I saw him. He was still on his feet. So I came up this sidewalk here that comes up to the courthouse, but I turned here and went into the jail, I called for Ben, he was the first man I spoke to. I wanted him to help me out, you know, so he didn't come to the door just then, I stepped off, I decided I had better get him anyway, when I turned to come back he had flipped the light on inside. He came to the door. He said `Powell, what about just waiting until tomorrow and get a warrant for him, we will pick Mr. Haynes up tomorrow' and I said, `no, I would rather have you get him tonight. He is in no condition to be on the street. He is under the influence of liquor' and so he says, `well, what about seeing George?' I says `I think I believe I will.' He said `I think that is best, whatever you and George do.' I came back out, walked out where we had that little wrestle on the sidewalk and I walked back to my car, and unaware of anything that had happened to Mr. Haynes, I get in my car, it was headed that way, instead of backing up turning it, I came around and pulled in the back alley where George Duncan, the chief, was rooming at that time. I pulled in the back alley. I called him. He told me the same thing. He said `Clyde, I always know if you need any help, don't hesitate to call on me.' I said, `well, I want you now. I would rather find the man tonight, get him off the street.' So George went ahead, put on his clothes. I went back, pulled my car out in the back on this side of the courthouse. I just walked back up and sat down in the car and waited for George. In the meantime, though, going over at this street light I see someone coming up that way, dart behind some bushes. I went back to keep him from seeing me until we got down in that street. I threw a spotlight over the lawn, threw that over the lawn and here came Henley Gray up to the side of the car. He said `a man has been hurt down there' so we went down there. I said, `there he is, George,' or someone; I said, `lookout, he may pull some kind of a trick, let's don't take any chance.' Of course we walked on down there and saw Mr. Haynes lying there, and George goes with him to the hospital and I stayed on duty until five o'clock before I got home to go to bed. I am sorry of the whole thing, the way it turned out, and that is all." Later, the defendant made an additional statement: "Gentlemen, for further explanation, after Mr. Haynes shoved me back down on the sidewalk, he ran off beyond the driveway out here at the other side of the jail and stooped down, picked up some rocks, and I shot once on the ground and he dropped the rocks and ran, and I shot twice in the air, and the last I saw of him he was on his feet, going around the corner. You can see for yourselves out there, the bullet marks are still on the sidewalk, and also loose rock that was there at the time of the trouble. I reckon that is all."

The State introduced two other witnesses, one of whom testified to the effect that about 20 or 30 minutes before the shooting Haynes was at the witness's house, awakened him and played some guitar music for him, and that the deceased was not drunk or boisterous at that time, although he appeared to be drinking. Another witness testified to the effect that he saw the deceased about 10 o'clock on the night of the killing. He seemed in high spirits. The witness thought that the deceased had a drink; that he did not use any profanity or vulgar language.

In rebuttal of the defendant's additional statement the State introduced several witnesses who testified that the morning after the homicide and before the committal trial the witnesses examined the cement sidewalk from the point where the defendant did the shooting to the point where the deceased fell, and that there were no bullet marks or marks of any kind on the sidewalk, but that after the committal trial the witnesses or some of them examined the same sidewalk and did find certain indentures had been made on the sidewalk since the committal trial.

We think we have set out substantially the testimony for the State and the defendant's statement necessary for a discussion of the opinion. 1. The general grounds and special ground 4 of the motion attack the verdict on the ground that the record does not support the verdict of voluntary manslaughter; that from the State's viewpoint the defendant was guilty of murder and from the defendant's standpoint he was justified or that the homicide was a result of an accident. Upon reading the defendant's statement, it is clear to our minds that the record sustains the verdict of voluntary manslaughter; that the tussle and words between the deceased and the officer were sufficient for a jury to determine that other equivalent circumstances existed to justify the excitement of passion on the part of the police officer and that after this occurrence the deceased ran away and was shot in the back while running.

2. Special ground 1 assigns error because of the following excerpt from the charge of the court: "In other words, voluntary manslaughter is the intentional killing of a human being, or the killing of a human being by the use of an instrument, that in the manner that is used at the time, is likely to kill, but a killing under circumstances to justify the excitement of passion, and to exclude all idea of deliberation or malice, either express or implied." The assignments of error to this charge are generally to the effect that the court should have, in this connection, instructed the jury that voluntary manslaughter is theunlawful, intentional killing, and that in not so instructing the jury the charge was confusing and misleading to the jury. Immediately before giving the excerpt quoted above, the court in instructing the jury with reference to voluntary manslaughter, used the following language: "I charge you, gentlemen, that manslaughter is the unlawful killing of a human creature without malice, either express or implied, and without any mixture of deliberation whatever, which may be voluntary upon a sudden heat of passion." The failure of the court to repeat in the excerpt that the intentional killing of the deceased under a heat of passion must be unlawful, is not reversible error under the facts of this case. The excerpt on which error is assigned is merely further in explanation of a charge already given on the subject of voluntary manslaughter. When we look to the charge as a whole, the jury could not have been misled or confused. In our opinion the charge in the instant case as to voluntary manslaughter, when we view the charge as a whole, removes it from the principle of law laid down in Darby v. State, 16 Ga. App. 171 (84 S.E. 724), relied on by the plaintiff in error.

3. Special ground 2 assigns error because the court erred in its charge to the jury upon voluntary manslaughter as follows: "Provocation by words, threats, menaces, or contemptuous gestures, shall in no case be sufficient to free the person killing from the guilt and crime of murder. The killing must be the result of that sudden, violent impulse of passion, supposed to be irresistible; for if there should have been an interval between the assault or provocation given, and the homicide, sufficient for the voice of reason and humanity to be heard, the killing shall be attributed to deliberate revenge, and be punished as murder." And further because the court did not in connection therewith call the jury's attentions to the fact that nevertheless words, threats, or menaces may justify a killing if the circumstances be such as to arouse the fears of a reasonable man that a felony is about to be committed upon him, and that if such fears were so aroused, and the defendant took the life of the deceased under such fears, that a felony was about to be committed upon him, the defendant would have been justified. It will be noted that the court was, in this connection, charging the law of voluntary manslaughter. The court had already charged the law of justification. It has been many times held that the principle of reasonable fears, aroused by words, threats, menaces or contemptuous gestures, that a felony is about to be committed upon the slayer, is applicable only to the principle of justification in self-defense, and has no place in the principle of law as applied to voluntary manslaughter. See, in this connection, Deal v. State, 18 Ga. App. 70 (7) (88 S.E. 902); Gresham v. State, 70 Ga. App. 80 (27 S.E.2d 463); Price v. State, 137 Ga. 71 (7) (72 S.E. 908); Futch v. State, 137 Ga. 75 (72 S.E. 911);Deal v. State, 145 Ga. 33 (88 S.E. 573); Hill v.State, 164 Ga. 298 (138 S.E. 229); Tye v. State,198 Ga. 262 (31 S.E.2d 471). This ground is without merit.

4. Special ground 3 assigns error upon the refusal of the court to give the following in charge as duly requested: "I charge you that if you believe under the evidence that the killing occurred under the circumstances as contended by the defendant, that is, that the deceased was endeavoring to commit a violent assault amounting to a felony, or that the circumstances were such as to justify the fears of a reasonable man that his life was in danger, and in attempting to avert the threatened injury defendant shot into the ground or sidewalk to keep the deceased from advancing on him with a rock or other instrument, with which the deceased was attempting to commit assault upon the defendant, and the bullet from the pistol hit the sidewalk or some other hard surface and ricocheted and struck the deceased and killed him, the defendant under these circumstances would not be guilty and you should acquit the defendant." The court charged and gave the benefit of the law of justifiable homicide, voluntary manslaughter, involuntary manslaughter in the commission of an unlawful act, and in the commission of a lawful act without due caution and circumspection, and also charged and gave the defendant the benefit of an accidental killing. When we read the charge as a whole in the light of the State's evidence and the whole record, the court did not err, under the facts of this case, in refusing to give the charge as requested.

Judgment affirmed. MacIntyre, P. J., and Parker, J., concur.Parker, J., designated to preside in place of Townsend, J.,disqualified.