The appellant brings this appeal from his conviction for voluntary manslaughter arising out of mutual combat with a resultant sentence of 20 years, 13 years to bе served in the penitentiary and 7 years on probation. He enumerates eight alleged errors. Held:
1. In the first four enumerations, appellant complains on general grounds that the trial court erred in denying his motion for a new trial. The record shows that appellant Strickland and the deceased Hatcher were neighbors whose property was adjoining. They had been neighbors for several years before the fatal altercation. Because of an earlier dispute involving appellant’s dozen pit bulldogs which he maintained on his property, the two families lived in a strained, hostile relationship, not speaking to each other or allowing their children to associate with each other.
Shortly before the fatal incident, Mrs. Hatcher started a compost pile in the rear of the Hatcher yard but *420 close to Strickland’s dog pens. Mrs. Hatcher placed kitchen scraps on the compost pile. Strickland and his wife interpreted the compost pile as the dumping of garbage intended to insult and demean them and their property and in further derogation of thе poor esteem with which the Hatchers held their family. Mrs. Strickland became very upset about the "garbage” and demanded that her husband do something about it.
Thоugh much of this evidence is in conflict, it is uncontradicted that Strickland at about midnight on the night of the shooting, and immediately after seeing the "garbage” and upon hearing the demand of his wife, called Hatcher on the telephone. The two men agreed to meet on the street outside their adjoining homes. Both men оbtained loaded .38 caliber pistols and went outside to the street. Again the evidence is in conflict as to which man fired the first shot or exactly how many shots were fired, but both men fired at or in the direction of the other. The ultimate result was that Strickland was unharmed and Hatcher was struck approximately three times, resulting in his death.
Though in its totality, there were conflicts in the evidence, there was ample evidence to raise the issue of mutual combat and require the triаl court to instruct on this type of voluntary manslaughter.
Askins v. State,
If, upon a sudden quarrel, the parties agree to a fight, or fetch their weapons and fight, and one of them is killed, such killing is voluntаry manslaughter, no matter who strikes the first blow.
Sheffield v. State,
Where there is conflicting evidence as to the guilt of an accused, the jury is required to determine the issue. If there is evidence of guilt, the jury is authorized to return a vеrdict of guilty.
Carnes v. State,
2. In his fifth and sixth enumerations of error, appellant contends the state improperly introduced evidence of other crimes, thereby placing his character into issue without lawful cause. The first occurred when the state adduced testimony from Mrs. Hatcher that a neighbor attempted to approach the motionless and recumbent body of her husband. As the neighbor came close, Strickland allegedly pointed the pistol at the neighbor, Perry, and ordered Perry to stay away. Later Perry was allowed to testify to the same occurrenсe, as was Perry’s wife.
It is the general rule that unconnected crimes not tending to prove any element of the case are inadmissible and prejudicially so as tending to place the character of the defendant in evidence.
Bacon v. State,
There are exceptions to this rule, as when the extraneous crime forms part of the res gestae or where it tends to prove malice, intent, motive.
State v. Luke,
Evidence that Strickland thwarted an attempt to render assistanсe clearly is admissible as supportive of his intent to kill the victim. Though appellant advanced other reasons for his actions, this did not render the evidenсe inadmissible. Under these facts, the evidence clearly fell within the dual exceptions of res gestae and
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proof of malice and intent.
State v. Luke,
The second reference to unchаrged misconduct occurred when a police officer was allowed to testify that he smelled alcohol on Strickland at the time of Strickland’s arrеst. Short of public drunkenness, the private use of alcoholic beverages is not a crime. Furthermore, it is well established that evidence relating to the time and place of arrest, whether the defendant was armed or resisted, and all other circumstances connected with the arrest, are proper matters to be submitted to the jury. It is noted there was no evidence of drunkenness or violence at the time of arrest. This evidence was lawfully admitted.
Henderson v. State,
3. In Enumeration 7, appellant asserts the prosecutor improperly referred to "a statement” made by appellant at the time of arrest which statement had been previously ruled inadmissible by the trial court.
The reference was in a question of the prosecutor in which the witness, a police officеr, was asked, "Was anything said?” to which the policeman responded, "Yes, sir.” Who made the statement, and what was said was never revealed to the jury. The question was not necessarily directed to any statements made by appellant as several other persons were present. The prosecutor аpparently was attempting to have the arresting officer explain his own actions and what caused him to act in that manner. We find no error in this testimony.
4. In his eighth and final enumeration of error, appellant complains that the giving of a charge on mutual combat was erroneous and having been given, was improperly worded. As indicated in Division 1 of this opinion, the evidence raised the issue of mutual combat. Such evidence authorized the instruction. In the absence of a request therefor, if there is evidence raising the issue whether the offense is murder or voluntary manslaughter, instructions as to both offenses may be given thе jury within the sound discretion of the trial court.
State v. Stonaker,
Appellant further complains that the charge as given was misleading and confusing apparently because the charge referred to a "fight” and did not restrict mutual combat to an encounter with deadly weapons. In its totаlity, the charge referred both to a "fight” and an encounter with "deadly weapons.” We have examined the charge carefully and find no uncertainty, ambiguity, or confusion. The issues of both the state and defendant were presented fully to the jury. The charge on mutual combat given by the trial court has been apрroved as being a substantially accurate statement of the law.
Cribb v. State,
Judgment affirmed.