157 Ga. 124 | Ga. | 1923
Lead Opinion
Under an indictment charging him with the murder of one Moses Lucas, the defendant was tried and convicted, and was sentenced to life imprisonment in the penitentiary. He thereupon made a motion for a new trial, which was overruled.
' The evidence for the State shows that on September 19, 1922, the accused shot and killed Moses Lucas; that on September 18, the day before the commission of the homicide, the accused went to the store of Henry Lucas, the son of the decedent. According to the testimony of Henry, he and his wife were at the store' about 8 or 9 o’clock in the evening; the defendant came in, called to the witness, and asked him where his wife was; witness replied that
Emma Lucas, the wife of Henry Lucas, testified that on the night of the 18th of September Scott came to the store and accused her husband of improper relations with his wife; said that he was going to kill her husband; he was armed with a pistol. Scott was cursing and threatening to kill her husband, Henry Lucas. She was also present the next afternoon when Henry Scott came into the store and said, “Wait a minute;” he went out of the store and came back immediately, told her husband to come out, that he wanted to talk to him, and said, “I am going to kill you, come out;” said that he did not want to kill both of us; and her husband said, “You won’t allow me to say anything to you,” and Scott had his pistol in his front side pocket and never took his hand off of it. . . “My husband went behind the counter to wait on a customer and to put the money received in a box, and Henry Scott was threatening all the time to kill him. My husband’s pistol was on the counter, and Henry Scott was standing in the door with his hand on his pistol, and my husband shot him, and Scott fell out of the door with his hand still on his pistol. And I thought he was trying to get a chance to shoot my husband. He looked up and saw my husband standing in the door and had him covered, and Scott shot him when he was fixing to get up, and then Scott jumped up and ran, and almost in the same breath I heard him shoot again, that is, Henry Scott, and he shot two or three times. . . After I heard Scott shoot, my husband came into the store and got his rifle and shot one time. Old man Moses Lucas did not have a gun or pistol.”
The evidence for the State clearly shows that the defendant went to the store of Henry Lucas, the son of the decedent, with the avowed intent to kill him; that he was armed with a pistol, which was visible to bystanders; that he used most abusive language to Henry Lucas, repeatedly threatening to kill him; that Henry Lucas ■was unarmed, but went behind a counter in the store where his pistol was in a box, took it therefrom, and shot the man who had come to the store the day before, threatening to kill him, and who came again on the evening of the homicide, repeating the threats and the abusive language, put his hand on his pistol, but before he drew it was shot by Henry Lucas. If the testimony of Henry Lucas and his wife is true, and it is strongly corroborated by the testimony of the officers of the law, then Lucas shot Scott because the latter had manifested a fixed purpose and determination to shoot him, with the present intent to carry that purpose into execution, with his hand on his pistol, and with threats on his lips. And even after he was shot down he declared to the man who shot him, “I ■ come to get you, but you beat me to it.” In his statement to the court and jury the defendant declared that upon receiving information that Henry Lucas had come to his store, “I went over there and he was towards the danding apartment, and he his wife by the counter, and I was gathering up some of my things, and in the meantime we were talking, and he says, ‘I reckon you are moving,’ and I says, ‘Yes, I am thinking of leaving town,’ and he says, ‘You are a damn fool; I know where you got all that mess,’ and I says, ‘What you heard what you said last night,’ and he says, ‘You are a damn liar,’ and that I didn’t hear it, and I says, ‘You did say it,’ and in the meantime I went behind the counter to find a paper bag, and got my pistol and put it in my pocket, and I
Under the evidence for the State Henry Lucas shot under circumstances that justified the act; and if he had killed the defendant, the shooting would have been justifiable. Under the facts as detailed in the statement of the accused, Henry Lucas opened lire on him without provocation; and if in thus firing upon ..him Henry Lucas had killed the defendant, the killing would have been murder. Under these facts and circumstances the law of voluntary manslaughter was not involved, and the court did not err in failing to instruct the jury upon that subject. Nor would it have been proper to give instructions to the jury upon the subject of voluntary manslaughter as involved in mutual combat, under the facts and circumstances as detailed by the witnesses or in the defendant’s state
The • defendant requested the court in writing to give the following instructions to the jury: (a) “If the defendant provokes the difficulty and abandons the difficulty and then is set upon by Lucas and it becomes necessary for him to defend himself or his life, his right of self-defense is restored; and then if he kills believing that his life is in danger, he can kill and be justifiable.” (6) “I charge you that there can be no murder without malice; and unless the State shows you that the defendant had malice against the deceased, you would not find him guilty of murder, but you should acquit him.” (c) “I charge you that if in consequence of an assault upon the defendant which he did not provoke, the defendant shot at Henry Lucas, but missed him and shot and killed his father, no guilt would attach to the defendant, if the assault upon him was such as would have justified him in the killing of Henry Lucas. In such cases the killing would be homicide by misadventure, and you should acquit the defendant.” The charges thus requested were not accurate in their statement of the law applicable to the facts of the case, and the court did not err in refusing to charge them; especially as the court instructed the jury in the charge given that “If Henry Lucas was the assailant or aggressor in this case, and if he began to shoot at the defendant, or did shoot at him without any justification on the part of Henry Lucas, if Henry Lucas would not be justified in shooting at the defendant, and if the defendant when Henry Lucas was thus shooting at him unjustifiably drew his pistol and attempted to shoot Henry Lucas, then he would not be guilty of any offense; that is, if the defendant, in good faith, shot at Henry Lucas when Henry Lucas had begun the difficulty and had drawn his pistol and was shooting at him and likely to continue to shoot at him, if in good faith he shot at Henry Lucas he was justified at the time, and if in this shooting at Henry Lucas under circumstances of justification, or thinking he was shooting at Henry Lucas, and he shot Moses Lucas instead, then he would not be.guilty of murder or any offense.” The part of the charge last quoted sufficiently set forth the theory presented by the defendants statement, that he shot at Henry Lucas after the latter had made an unjustifiable as
Error is assigned, in several grounds of the motion for new trial, upon the following portions of the court’s charge: (a) “I charge you, gentlemen of the jury, that if this defendant shot at Moses Lucas, being in possession of his faculties, if he intentionally shot at Moses Lucas when Moses Lucas was making no effort to attack him, if he deliberately shot at Moses Lucas and killed him, intending to shoot Moses Lucas, then he is guilty of murder, provided Moses Lucas was doing nothing to give him any reasonable ground to believe that it was necessary for him to shoot at Moses Lucas in order to save his uyn life or to protect himself from any kind of assault upon the part of Moses Lucas.” (b) “The defendant in this case contends he did not intentionally shoot at Moses Lucas, that he didn’t see him and didn’t shoot at him. That is an issue of fact for you to determine. Did he intentionally shoot at Moses Lucas, and Moses Lucas was not making any effort to assault him or inflict any injury upon him whatever, or give him any provocation? If he did, and that was intentionally done on his part, then he is guilty of murder.” (c) “It is contended in this case, and it is a question for you to determine whether or not the defendant-shot Moses Lucas in an attempt or effort of shooting and killing Henry Lucas. Now, if you should decide in this case that it is not shown beyond a reasonable doubt that this defendant intentionally shot at Moses Lucas, you will then consider whether or not he shot Moses Lucas in an effort to shoot Henry Lucas.” (d) “I charge you that if he shot at Henry Lucas, and by inadvertence, intending to shoot Henry Lucas, he shot Moses Lucas, then he would be guilty of such offense as he would be guilty of had he shot and killed Henry Lucas. Where one man shoots at another and kills a third party accidentally,' that is, not intending to kill the third party, but intending to kill the other party at whom he shoots, then he is guilty of the same offense as though he shot and killed the person at whom he shot or intended to shoot. So that ■brings you to consider the question whether or not, if the defendant had shot and killed Henry Lucas, under the circumstances under which he was then placed he would be guilty of murder, or any other offense.” (e) “The State contends in this case the facts are
There is no merit to the exceptions to these charges. The propositions of law laid down in these paragraphs are substantial statements of law applicable to the case, and sufficiently cover the issues dealt with in the charges, when considered in connection with the entire charge.
Judgment affirmed.
Dissenting Opinion
who dissent on the ground that the court erred in failing to charge on the subject of voluntary manslaughter as embodied in sec. 65 of the Penal Code, and that the court also erred in failing to charge on the subject of voluntary manslaughter involved in the theory of mutual combat.