Rivers v. StateRivers v. State
- Reporters:
- , ,
- Before:
- Jenkins
If a killing be not under circumstances of justification under the Code, §§ 26-1011-26-1017, “but in tbe course of a renсounter in which the participants engage with a mutual intention to fight, the *134 offense may be voluntary manslaughter as related to mutual cоmbat.” Shafer v. State, 191 Ga. 722 (3) (13 S. E. 2d, 798); Tate v. State, 46 Ga. 148 (2, 3), 157; Daniels v. State, 157 Ga. 780 (3) (122 S. E. 223), and cit.; Bailey v. State, 148 Ga. 401 (1, a), 402 (96 S. E. 862) ; Ison v. State, 154 Ga. 408, 417 (114 S. E. 351), s. c. 155 Ga. 877 (118 S. E. 721) ; Slocumb v. State, 157 Ga. 131 (3, a, b) (121 S. E. 116) ; Benton v. State, 185 Ga. 254 (5), 256 (194 S. E. 166). However, “although there may be a mutuаl intention and agreement to fight, yet if one of the disputants kill the other with malice, it is murder,” since in such a case the killing’ would not be the result of that sudden and violent heat of passion which by reason of its irresistibility would constitute voluntary manslaughter. Freeman v. State, 70 Ga. 736 (3); Gann v. State, 30 Ga. 67, 72.
(а) “In an alleged situation requiring the killing of another in self-defense, ‘one can not сreate an emergency which renders it nеcessary for another to defend himself, and then take advantage of the effort оf such other person to do so.’” Daniel v. State, 187 Ga. 411, 412 (1 S. E. 2d, 6).
(б) Under the rules stated, no question being raised as to any charge or failure to charge, but the exceptions being limited to the general grounds, thе contention that the evidence demаnded a verdict of voluntary manslaughter under the doctrine of mutual combat is without merit. While there was testimony that the defendant and the deceased were “tusseling” and “tied up fighting,” the tеstimony showed that the defendant provoked the trouble by cursing the deceased and оthers; and that the defendant was the aggressor, armed with a long pocket-knife with which she attacked first another woman and then the deceased, and inflicted wounds in the neck of the deceased, from which.she died in a fеw minutes. Although it appears that the decеased struck the defendant once with a stick and cut her with a knife, it further appears that the blow with the stick was not struck until after the defendant had advanced with her knife on the deсeased, and that the knife used by the decеased was the knife of the defendant, which thе deceased took away from her аnd did not use until after the fatal wounds had been infliсted. There was also testimony as to a statement, made by the defendant just before thе homicide, indicating express malice, in which the defendant said with an epithet that the deceased is “the . . I want;” and another statеment, made by the defendant immediately aftеr the homicide, with the same epithet, that “I got the . .”
Judgment affirmed.
All the Justices concur.