Randolph v. State, 43 S.E.2d 101

43 S.E.2d 101 | Ga. Ct. App. | 1947

Lead Opinion

1. The evidence amply sustains the verdict for voluntary manslaughter.

2. Where one uses a weapon deadly per se in the usual and natural manner in which such weapon is used to kill, and death results, the law presumes an intention to kill.

3. The verdict, while perhaps not in the best grammatical form, was legally sufficient.

DECIDED MAY 21, 1947. REHEARING DENIED JUNE 5, 1947. The defendant was convicted of voluntary manslaughter on an indictment for murder. He filed his amended motion for a new trial, which was overruled. Error is assigned here on the judgment overruling his motion. The defendant was accused of killing his father with a shotgun. In order that we may more clearly present the view of the court, we deem it necessary to set forth the evidence substantially, though in some particulars briefly. We do this since counsel for the defendant so earnestly urge their contention for a reversal.

The State's evidence: It appears from the first witness, William Randolph, 75 years of age, who lived in Alabama, that he made a visit to the home of the deceased who was his cousin. The deceased, together with his wife, and the visiting witness, went to church, returning between 11 and 12 o'clock at night. A car was hired from a neighbor to make the trip to the church. After they returned from church the visiting witness was told by the deceased to go to a room and retire. Within about five minutes thereafter the witness heard a gun fire. He arose and left the home, stating to the wife of the deceased, who was then on the porch, that he could not stay there under such conditions. The witness heard no quarrel or words of any kind before the gun was fired. At the time the deceased told the visiting witness to go to bed, he had a shotgun in his hand. The witness did not know if anyone had been shot when witness left the home. He went to a neighbor's house and stayed there until the sheriff went for him. He did not hear anyone say that night after he returned home, where the homicide occurred, as to what the killing was about or how it happened.

The next witness, Rembert Casey, testified that he lived within a mile of the deceased on the same farm with the deceased; that he carried the deceased and his wife and the visitor to church in his car; that after he returned to the home of the deceased from church witness went then to his own home; that shortly after witness returned to his home and retired, the accused came to his house and told witness that he wanted witness to take accused to Commerce. Upon inquiry, the witness learned from the accused that the accused had shot his father. The accused stated that he did not know whether or not he killed his father. The witness and the accused returned to the home of the deceased where witness learned that the deceased was then dead. The defendant did not get out of the car. The witness and the accused went from there to Commerce where the homicide was reported to the police force, and where the defendant surrendered himself and asked that the sheriff be called. From there the witness and the accused returned to the home of the deceased. The accused did not tell the witness at any time why he shot his father. When the witness returned to the home of the deceased, the sheriff was there. The wife of the deceased and the defendant, John Randolph, told the sheriff "about how it happened." Witness could not remember all the defendant told the sheriff. He did remember the sheriff asking the defendant why he killed his father and the defendant said that he, the defendant, was taking up for his mother. The sheriff inquired of the defendant what the deceased was doing to the mother and the defendant told the sheriff that the deceased told her to leave, or "something like that." The witness could not remember very well.

The sheriff testified that on the night of the homicide he was called to the home of the deceased; that he found that the deceased was dead in his bed, clad in his night clothes; the deceased was lying on the side of his bed with his head over on a trunk. The sheriff examined the head of the deceased. It was blown off. The head was packed with cotton where it was shot off. All of the face of the deceased, and the upper part of his head, was shot off. The defendant, John Randolph, was present in the house when the sheriff went in. The sheriff began to investigate and the defendant had "a mighty little to say." The wife of the deceased, the mother of the defendant, was also in the room. She stated to the sheriff that she would tell him the truth; she told the sheriff that after the visiting cousin and the witness and the deceased returned from church, that the visiting cousin had, on his arrival at the home, before they went to church, kissed the wife of the deceased; that from then on everything went along all right until they returned from church; after then the deceased began to raise trouble and got the gun and was fixing to make the wife of the deceased leave. The defendant, John Randolph, was not there at the time of the trouble between the deceased and his wife. The sheriff did not remember what the defendant said during this conversation with the wife of the deceased. He didn't say much. He did say that his father was wanting to kill his, the defendant's mother, and that the deceased had it in for the defendant's mother sometimes. The sheriff asked the defendant if the defendant had had any trouble with his father, the deceased, and the defendant replied that his father tried to dig him to death with a hoe one time and that the defendant's mother prevented the deceased from doing so. The sheriff found the gun with which the deceased was killed, over the door on a rack. He did not know whether or not it was loaded; that the sheriff's son, Verner, who was present, knew more about the gun than did he, the sheriff.

Russell Randolph Jr., the brother of the defendant, was present in the room during the conversation with the mother. Neither Russell Randolph nor the defendant had anything to say about the shooting. When the mother "told me about how the shooting took place" she did not say that the deceased was sitting on the bed with the gun pointed toward her when the defendant shot him. Neither the defendant nor his brother told the witness how the shooting happened. Cross-examination: All the defendant said was that he killed the deceased in defense of his mother. His mother told the sheriff that she was out on the porch after returning from church when the defendant came up and she said, "John got the gun and went back in there and shot him [meaning the deceased]. My boy got the gun behind the bed."

Verner Brewer, the son of the sheriff, who accompanied the sheriff to the scene of the homicide, testified substantially: That upon arrival inquiry was made as to the trouble, and the officers were informed that a killing had taken place. Whereupon the witness went to where the deceased was lying and found the deceased dead with gunshot wounds, as we have already related in the evidence of the sheriff. An empty gun shell was picked up from the floor and handed to the witness by Russell Randolph Jr., the brother of the defendant. The witness then went to the wall, near the bed where the deceased was lying, and looked at a double-barrel shotgun; there were no shells in it (the deceased was killed, according to all the evidence, by a single barrel shotgun which was in the rack over the door) and the double barrel shotgun referred to by the witness was the gun which the defendant claimed was held by the deceased at the time of the killing and which, according to his contentions, was held by the deceased and being pointed at the mother of the defendant by the deceased. The defendant did not say anything to the witness. His mother did the talking, although she was talking in the presence of the defendant. The mother stated that she was going to tell the truth. She related the incident of the cousin kissing her, and that when the deceased and the visiting cousin and the mother returned from church the trouble started between the deceased and the mother. Thereafter she went on the porch and while sitting there crying her two sons, John Randolph, the defendant, and Russell Randolph Jr., came up. The defendant inquired of her what was the trouble and she told him that the deceased said she had to leave home; that the defendant then went in the house "and got the gun and shot him."

On cross-examination the same witness testified that the double-barrel shotgun was on the right hand side at the head of the bed where the deceased was lying. Witness could not tell whether the double-barrel gun had just been unloaded.

Statement of the defendant and his testimony: "Well, me and my brother had been to church and when we came back the house was dark and when we got there mama was sitting on the porch crying and I asked her what was the matter and she said that papa got after her and tried to kill her because Uncle Willie kissed her. And I said `come on, let us go in the house, he ain't going to hurt you,' and so we went in the house and my brother went in there and lit the lamp and brought it in there and we went in there where he was and papa was sitting there on the bed with the gun in his hand like this and he said `I told you if you came in here again I was going to kill you' and he pushed the gun out that way and when he did that I reached up over the door to get the gun to shoot it out of his hand to keep him from shooting her and I liked him as good as I did mama and so after the gun went off I went to town to call the sheriff, and I wasn't mad at him and he wasn't mad at me."

Caroline Randolph, the wife of the deceased and mother of the defendant, testified that the visiting cousin on his visit there kissed her; that the deceased, who was sitting on the porch, saw the caressing but said nothing to the witness until after they returned from church. After returning from church the deceased upbraided her and stated that if she did not leave, he would kill her. She promised him that she would leave the next morning. The deceased replied that he would kill witness in the morning. Witness ran out the door and the defendant was there when witness ran out the door. The defendant inquired of her the trouble, whereupon witness informed the defendant that the deceased had a gun and stated that he was going to kill the witness if she didn't leave. The defendant told witness to go with him in the room where the deceased was, and said: "He ain't going to hurt you and we went in there and John said `what's the matter' and he, Russell Randolph, said `you'll see in the morning' and he pointed the gun at me and he was fixing to kill me if John hadn't killed him, he would have killed me. I was holloing and screaming. He had a gun when John killed him. He had the gun pointed towards me after he saw me and he told me `I told you not to come back in here. I told you if you did I was going to kill you.' That is all that he said." On cross-examination the same witness testified: that witness could not remember how long the deceased had been in bed before the defendant shot him; witness was on the porch crying when the defendant arrived; there had been no fussing between witness and the deceased about buying the automobile for the boy; "I wanted him to get us a car. We wanted him to get us a car and he wouldn't get it. . . Russell [meaning the deceased] would not buy the automobile. We had enough money to buy an automobile. Russell [meaning the deceased] did not like it about the money the boy sent from the Army because the boy [meaning the defendant] made the allotment to me. . . Russell [meaning the deceased] and I had an argument about that money. He wanted half of it and I would not give him half of it. We did not have that argument that night." Witness paid Casey for taking them to church that night. She paid him the following Thursday. Witness did not know how long the defendant had been on the porch before he shot his father. The defendant went into the room first and "I was behind him. I told the sheriff what happened that night and the way I told the sheriff was the way it happened. Russell [meaning the deceased] got the gun again after him and told me `I told you not to come back in here, if you did I was going to kill you.' I did not tell the sheriff that that night. I was just done out."

Russell Randolph Jr., testified that he was the brother of the defendant and the son of the deceased; that he was 17 years of age and his defendant brother was 20 years of age. He related that when he and his defendant brother returned from church their mother was sitting on the porch crying. They inquired of her the trouble and she related that the deceased had accused her of kissing their cousin. The mother then told the witness to go in the room and see what was the matter. Witness went into the room where the deceased was and lit a lamp. The deceased was sitting on the bed and told witness for his mother not to come in there if she did he was going to kill her. "He [meaning the deceased] had the gun and she was standing there." The deceased raised the gun up and "my brother [the defendant] shot him" to shoot the gun out of the deceased's hands. The deceased had the gun pointed straight toward the mother of the witness and told the mother not to come back in there any more, that if she did the deceased would kill her. Witness went to his father after the shooting to ascertain the extent of the wounds and packed the cotton in the wound to keep it from bleeding so much. The gun the deceased had fell on the floor and it was set in the corner.

On cross-examination the same witness testified: the defendant was standing in the door when he shot the deceased; the gun which the defendant got to shoot the deceased with was hanging up over the door over the defendant's head; the defendant reached and got it, brought it down and shot the deceased. The deceased was holding the gun on his right shoulder pointing it at the mother of the witness, and stated that he (the deceased) told the mother not to come back in there, that if she did he would kill her. The defendant asked the deceased what was wrong before the shot was fired. It was not long after this remark before the defendant got the gun and shot the deceased. The gun the deceased had was a double-barrel gun. After the defendant shot the deceased the gun which the deceased held fell back on the floor. The gun which the deceased had was a 12 gauge hammer gun. The deceased had never gotten a gun after the defendant's mother before. The deceased did not drink. The deceased and the defendant's mother had an argument about the money which the defendant's brother sent from the Army. The mother received the checks and kept the money and they argued about that some. Witness and the defendant had not tried to get the deceased to buy a car. "We did talk to Mr. Casey about it" and witness said the deceased ought to buy one. At the time of the shooting the mother of the witness was standing in the door with the defendant. The deceased was sitting on the right side of the bed in his night clothes with his feet "kind of on the floor." He was sitting on the side of the bed where the gun was lying. "I heard mama tell the sheriff and his son how the thing happened that night. She told him how it happened. I told him how it happened. I told it like mama told him." 1. In our opinion it would be supererogation for us to here go into an analysis of the evidence to show that the verdict of voluntary manslaughter is supported by the evidence. This is true, since we have set out the evidence in detail. Without doubt, under the evidence, the jury were authorized to find that the defendant, because of passion aroused on account of the alleged attack of the deceased on his mother, killed his father. A cursory reading of the evidence will reveal this fact. The evidence also would have supported a verdict for murder. Indeed the evidence smacks strongly of a conspiracy to take the life of the deceased without legal justification. Of course we do not mean to say that under the defendant's contentions a verdict of not guilty would not have been authorized on account of self-defense. We must judge the accused as standing in the shoes of his mother. The court submitted all of these phases. The jury were within their province to return a verdict for voluntary manslaughter. The court did not err in overruling the motion for a new trial on the ground that the evidence does not support the verdict for voluntary manslaughter.

2. There are five special grounds in the motion. Special grounds 1, 2, 3, and 4 assign error on the ground that the court erred in failing to charge, without a request, involuntary manslaughter in the commission of an unlawful act and in the commission of a lawful act without due caution and circumspection. These grounds are argued together by counsel, and we will discuss them together. They are based on the defendant's statement and the evidence of his brother and mother to the effect that the brother and mother testified in corroboration of the defendant's statement that the defendant shot the deceased not with any intention to kill him but with the intention of shooting a gun out of the hands of the deceased, which gun was at the time being pointed at the defendant's mother, to prevent the deceased from killing the defendant's mother. The defendant, in his statement, said that he shot his father for the purpose of disarming him to save the life of the defendant's mother. The defendant's brother and mother testified that the defendant shot the father with this intention and not with any intention to kill. Counsel for the defendant in his argument before the court here very frankly stated that the testimony of the brother as to what intention the defendant had when he fired the fatal shot was not competent testimony. But he further contended that since the evidence was in without objections, the court was bound to charge on involuntary manslaughter. Counsel further inferentially admitted that the defendant's statement only to the effect that the shot was fired for the purpose of disarming the deceased, the court would not have been required to charge on involuntary manslaughter without a written request. We do not think the testimony of the brother and mother in this respect had any probative value. This is true for the reason that they could not tell what was in the defendant's mind when he shot the deceased, and the law could not permit them to say. Be this as it may, we will deal squarely with the question as to whether under all the facts and circumstances and the defendant's statement the court erred, with or without a written request, in failing to charge the law applicable to involuntary manslaughter in either of its phases. Counsel for the defendant cite a number of cases upon which they rely for a reversal based on these special grounds. Those cases are: Cain v. State, 39 Ga. App. 128 (2) (146 S.E. 340); Jackson v. State, 43 Ga. App. 468 (159 S.E. 293);Thomas v. State, 47 Ga. App. 237 (3) (170 S.E. 303);Smith v. State, 50 Ga. App. 105 (177 S.E. 76); Greenway v. State, 59 Ga. App. 461 (1 S.E.2d 217); Kelly v.State, 145 Ga. 210 (3) (88 S.E. 822). We have read each one of these cases very carefully. Their facts differentiate them from the facts of the instant case. All but two of them involve homicides where no weapon deadly per se was used. Two of them, Jackson v. State, and Cain v. State, supra, involved a gun, but the guns in those two cases were not, as here, being used in the usual and ordinary manner to kill. In the Jackson case there was a tussling over a gun; in the Cain case the deceased was either struck with a gun or hit his head on certain snags while tussling over a gun. In the instant case the defendant used the gun in the usual and natural manner in which a gun is used to kill, and did kill. In such a situation the law presumes that the defendant intended the natural consequences of the result of his act, — that is, that he shot with the intention to kill, and he will not be heard to say that he did not so intend. And we can not very well comprehend how the law could afford any degree of protection for human life should it provide otherwise. When a homicide is neither justifiable nor malicious it is manslaughter, — if intentional it is voluntary manslaughter. Some of the cases on this phase go to the extent of not only holding that the intention will be presumed, but that it will be conclusively presumed where a deadly weapon is used in its usual and natural manner for killing, and death results. InKinsey v. State, 24 Ga. App. 342 (100 S.E. 770), this court said: "`When one voluntarily shoots at another and the shot kills, the homicide can not be involuntary.' Smith v. State,73 Ga. 79 (3)." There are many other cases which militate against the defendant's contentions. We will call attention to some of them, as follows: Hanvey v. State, 68 Ga. 612;Chelsey v. State, 121 Ga. 340 (49 S.E. 258); Napper v.State, 123 Ga. 571 (51 S.E. 592); Nolly v. State,124 Ga. 10 (52 S.E. 19); McLeod v. State, 128 Ga. 17 (57 S.E. 83); Scott v. State, 132 Ga. 357 (64 S.E. 272);Norton v. State, 137 Ga. 843 (74 S.E. 759); Cullins v.State, 148 Ga. 17 (95 S.E. 675); Burnett v. State,160 Ga. 593 (128 S.E. 796); Wright v. State, 168 Ga. 690 (148 S.E. 731); Griffin v. State, 183 Ga. 775 (190 S.E. 2); Gaskin v. State, 11 Ga. App. 11 (74 S.E. 554); Hart v. State, 14 Ga. App. 364 (80 S.E. 909); Harris v.State, 55 Ga. App. 189 (189 S.E. 680); Jones v. State,58 Ga. App. 374 (198 S.E. 566); Greenway v. State, 59 Ga. App. 461 (1 S.E.2d 217). There is no error in the contentions of counsel for the defendant as contained in special grounds 1, 2, 3, and 4.

3. Special ground 5 contends for a reversal because the verdict returned by the jury was illegal and contrary to law in that it did not prescribe a minimum and maximum within the minimum and maximum for voluntary manslaughter as required by the principles of the Code, § 27-2502. It is further contended that the verdict is contrary to the charge of the court. The court charged the jury as alleged in this ground as follows: "and you may then take up and determine whether or not the defendant is guilty of the lesser offense of voluntary manslaughter, and if you convict him of that offense the form of your verdict would be: `We, the jury, find the defendant guilty of voluntary manslaughter.' It would then be your duty to fix the punishment the defendant would receive within the limits prescribed by law, these limits being from one to twenty years, and you would add to that verdict of `We, the jury find the defendant guilty of voluntary manslaughter' the following `and we fix his punishment at minimum term so many years which must not be less than one year, maximum term so many years which must not be greater than 20 years.' You may, if you see fit, fix the minimum and maximum terms the same number of years. . ."

The verdict returned by the jury is as follows: "We, the jury, find the defendant John Randolph, col. guilty of voluntary manslaughter. This 14th day of November. 7-10 years. 1946 [Signed] M. E. Chandler, Foreman."

The court sentenced the defendant to serve not less than seven years, nor more than ten years in the penitentiary.

Counsel cite, in support of this contention, the case ofMitchell v. State, 34 Ga. App. 505 (130 S.E. 355). That verdict was to the effect: "We, the jury, find the defendant guilty and recommend him to the mercy of the court." The appellate court held that that verdict was error for the court to receive it and sentence the defendant to a minimum of five years and a maximum of ten years. Under the charge of the court, considered in connection with the verdict returned in the instant case, it is clearly discerned that the jury intended the sentence to mean that the defendant was to be sentenced to a minimum of seven and a maximum of ten years. The defendant cites also the case of Camp v. State, 187 Ga. 76 (200 S.E. 126). That case is to the same effect as the case of Mitchell v. State, supra. Counsel also cite the case of Burns v. State,191 Ga. 60 (11 S.E.2d 350). A casual reading of that case shows that it is not applicable to the facts in the instant case. This ground is without merit.

The court did not err in overruling the motion for a new trial for any of the reasons assigned.

Judgment affirmed. Sutton, C. J., MacIntyre, P. J., andParker, J., concur. Felton, J., concurs in the judgment.Townsend, J., dissents.

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Dissenting Opinion

The State relies in this case on the evidence of the condition of the deceased after he was shot, and the testimony of the witnesses, William Randolph, Rembert Casey, Farris Brewer, and Verner Brewer. William Randolph testified in substance: that he lived in Birmingham; that he was a first cousin of Russell Randolph; that he visited Russell Randolph on August 29, 1946, and went to the New Salem Church with Russell Randolph and his wife and some neighbors that night, and returned home ten minutes before twelve o'clock; that he was seventy-five years of age and did not know how old Russell Randolph was; that when he came back from church he procured a flashlight and went outdoors; that he came back in less than ten minutes, and Russell and his wife were talking very loudly; that he asked, "What's the trouble?" and Russell came to the door carrying a single-barrel shotgun and said to the witness, "Go on in the room and lay down;" that he went in and lay down and carried the flashlight with him, and in a few minutes the boy came in there and slammed the door going out, without saying anything; that in a few minutes he heard a gun fire, after which everything was quiet for about three minutes, and then he heard a woman crying out on the porch; that he got up, dressed and started to leave, and the woman said, as he was leaving, "Where are you going, Cousin William?" The witness replied: "I am leaving here. I don't stay at no house where there is a fuss." She summoned the little boy, gave him the light, and instructed him to accompany the witness to the home of a neighbor. About forty-five minutes later the sheriff came there, arrested the witness, and brought him back to the home of Russell Randolph. He and the sheriff went into the room where Russell Randolph had been shot, and he was lying across the bed with the right side of his head almost shot off. The witness does not recall any statement made by the defendant. The witness did not know which of the boys came into the room in which the witness had gone to bed before the shooting. While he was in there he lit a lamp in that room. On cross-examination and redirect examination, the witness substantially reiterated the foregoing testimony.

Rembert Casey testified in substance: That he lived on the same farm where Russell Randolph lived on August 29, 1946. On that night he took Russell and his wife, and the old man, his cousin, to church at New Salem, above Jefferson, in his car and got back to Russell's house about twelve o'clock. The defendant was not there, and he saw him later that night. The home of Russell Randolph was in Banks County. After the witness had gone to his home, the defendant came and asked him to take him to Commerce. He (the defendant) and his daddy had a little trouble and he shot his daddy in the head, and didn't know whether he was dead or not. The witness returned to the home of Russell Randolph expecting to take him to the doctor and found Russell lying there in the bed, dead. The defendant gave the witness no reason for shooting his father. He returned to his home with the witness, but didn't get out of the car. He took the defendant to town to see about an inquest. He talked with a Mr. Hosch and another fellow, who, being informed by the witness that there were eyewitnesses to the shooting, said that no inquest was necessary. The witness returned to the Randolph home and spent the night there. While there, the defendant's mother told the sheriff about how it happened. The defendant also told the sheriff, but the witness couldn't remember all that the defendant told him. He does remember that he said he was taking up for his mother and that the deceased had told his mother to leave or something like that. Farris Brewer, the sheriff of Banks County, testified that on the 29th of August, 1946, he was called to the home of Russell Randolph. When he got there, he found a dead man in the bed, dressed in his night clothes, his head was practically blown off. The defendant had very little to say. He did not deny it. His mother was present; she stated that everything went off all right until they got back from church. He was "fixing" to make her leave. The defendant was not there. Later he came, and asked her what was the matter, and she told him; he went then and got the gun and shot the deceased. The witness said that John had little to say. He did say his father "was wanting" to kill his mother; that he had once had trouble with his father when the latter tried to dig him to death with a hoe, and his mother got between them. The defendant admitted the shooting and pointed out the gun that he used. On cross-examination, the sheriff testified to the statement the defendant made, that it was in defense of his mother; that the mother said she was out on the porch when the defendant came in that night, and she related to him the trouble which she had with the deceased. On redirect examination, the sheriff stated that the mother did not tell him that Russell was sitting up in the bed with the gun pointed at her when the defendant shot him. Verner Brewer, deputy sheriff and son of the sheriff, testified substantially to the same facts as those testified by his father. In addition he exhibited the gun, pointed out as being the one doing the killing, and testified: That the defendant's mother stated that the single-barrel gun was over the doorway and the double-barrel gun was next to the bed. The shell was either on the floor or on the table. It was picked up by Russell Jr. and given to them. The double-barrel gun was not loaded. The statements made by the defendant's mother were in his presence. He related the statements substantially as his father did, adding that she said that she was on the porch crying when the defendant came home and asked her about the trouble.

The defendant's statement, corroborated by the only eyewitnesses to the shooting, Caroline Randolph, mother of the defendant, and Russell Randolph Jr., 17-year-old brother of the defendant, substantially presented a statement of fact as follows: On August 29, William Randolph, first cousin of the deceased, came to the Randolph home in Banks County and kissed Caroline Randolph, wife of the deceased in the presence of the deceased, and after they went to church and upon their return Russell Randolph commenced a quarrel about the kissing episode. He ordered her to leave the house. She asked him to let her stay until morning. He said that in the morning he was going to kill her. She went out on the porch and was sitting there crying, when the defendant and Russell Jr. came home. The defendant asked his mother what was the trouble, and she said that she told the defendant that her husband was quarreling with her about Willie kissing her and that he had a gun and was going to kill her if she didn't leave. That the defendant told her to come on and let's go in; that he is not going to hurt you; that they went in and the defendant said to the deceased, "What's the matter?" That the deceased said, "You'll see in the morning;" that he thereupon pointed a gun at her. She "hollowed" and screamed. The deceased said, "I told you not to come back in here. I told you, if you did I was going to kill you." That while the deceased was thus pointing a shotgun at the defendant's mother and threatening to kill her, the defendant reached to the rack over the doorway in which he, the defendant, was standing, got down another shotgun and shot the deceased in the head, killing him. The defendant stated that he intended to shoot the weapon out of his father's hands. This conclusion was also testified to by the defendant's mother and brother, obviously they could not know his intention.

An examination of the facts in this case discloses that the State relies upon the manner in which the deceased was shot, the defendant's admission that he shot him, other admissions on the part of the defendant, and statements by the mother of the defendant made in defendant's presence.

There is no material conflict in the State's evidence and that offered by the defendant and the defendant's statement. In fact a great deal of the State's evidence corroborates that of the defendant and his statement. For instance, the testimony of William Randolph that he saw the deceased with a gun in his hand before the defendant got home while he was quarreling with his wife, corroborates the testimony of Caroline Randolph that the deceased had the gun before the defendant came home.

While neither the defendant nor his mother told the sheriff as much as they told the jury, they told him nothing that conflicted with what they told the jury.

It is true that the defendant told the sheriff little of the occurrence, yet he did tell the sheriff that the defendant's "father was wanting to kill her" (his mother), and he "was taking up for his mother" and "it was in defense of his mother." The defendant's right and obligation to defend his mother is the same as his right of self-defense. Code, § 26-1015.

I concur in the opinion of the majority as to all the special assignments of error contained in the amended motion for new trial, but it is my firm conviction that the verdict and judgment are decidedly and strongly against the weight of the evidence, and that the trial court erred in overruling the motion for new trial on that general ground. "When the verdict of the jury is strongly and decidedly against the weight of evidence in a criminal case the court will order a new trial. . . It is justifiable homicide to kill one who intends, by violence, to commit a felony upon the person of another. . . When the circumstances are such as to excite the fears of a reasonable man, in the absence of all other proof to the contrary, the law will attribute the killing to these fears, and not to revenge or passion." Aaron v. State,31 Ga. 167.

No presumption of criminal homicide arises, where the accused admits the homicide but states circumstances of justification, and the testimony of witnesses which proves the homicide, also discloses circumstances of justification. Green v. State,124 Ga. 343 (52 S.E. 431).