26 Ga. App. 475 | Ga. Ct. App. | 1921
Freddie Sanders was indicted jointly with his father, West Sanders, for the murder of John Adams, and, being separately tried, the son was found guilty of voluntary manslaughter. From the defendant’s statement at the time and the conflicting evidence, the jury were authorized to find the following facts: On the day before the homicide West Sanders wrongfully killed a hog belonging to Adams, while Fred Sanders and his sister went to the Adams home, during his absence, assaulted and beat his wife, and forcibly took and carried away a pistol belonging to Adams. But later, either on the same day or at some time during the night, Adams and West Sanders mutually adjusted their differences by an agreement that Sanders should either pay for the hog he had killed or replace it with one of his own. On the occasion of the homicide Adams, with two companions, had started to the Sanders home to demand the return of his pistol, but met both West and Fred Sanders in .the road near their home, where, in a discussion of the troubles of the preceding day, a quarrel ensued, which terminated in both West and Fred Sanders, who were then unarmed, being shot and wounded by Adams. As to what then followed, the defendant, in his statement to 'the court and jury, said: “ I didn’t have anything in my hand, and I ran to the house and got the pistol out of the washstand drawer, and come back -and shot him and'killed him.” In a' supplemental statement; made after the testimony was closed, the defendant further said': "I want to
Other theories of the case, deducible from the evidence, are unimportant here, the only attack upon the evidence being that it demanded either a conviction of murder or an absolute acquittal, and that it discloses no theory of voluntary manslaughter, either as where a killing occurs in a sudden heat of passion or as where the killing results from mutual combat.
From the evidence above set out, a mutual intent to fight, and an actual fight in pursuance thereof, resulting in the homicide in question, were reasonably inferable. For this reason the court did not err in giving in charge to the jury the law applicable to such combats. But under this theory of the case, no more justification for the killing appears than under the other. To justify a killing in mutual combat, it must appear, not only that the threatened danger, whether real or apparent, was urgent and pressing “ at the time of the killing, ” but also " 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.” Penal Code (1910), § 73. While, from this theory of the facts, the impending danger is sufficiently made to appear, yet in view of the defendant’s own statement that he armed himself for that combat, left his place of safety to enter or recommence the affray, and, having entered it, remained in it until his antagonist fell mortally wounded, he negatives the other essential of the justification he claims.
The verdict was authorized by the evidence, and the charge of the court is not subject to the criticisms urged. The defend
Judgment affirmed.