133 Ga. 76 | Ga. | 1909
Burdette Strickland was convicted of murder, for the killing of Ed Daniel, and excepted to the refusal of a new trial. On the trial it appeared that a crowd of negroes and several white men were assembled at night near the door of a tent under which a show was in progress. The accused, a negro, and' the deceased, a white man, were in the crowd. According to the evidence for the State, the deceased approached the accused, who was talking to a negro woman, and asked them what they were talking about. She replied that she was asking the accused to pay her way into the show. Deceased laughed and asked the accused if he was going to do so. The accused laughed and replied that he was not able to pay her way. The deceased said: “You ought to go off then.” The accused stepped back, the deceased said something to the woman, the accused cursed, and as the deceased turned around the accused fired at him two or three times with a pistol, and about that time the deceased “managed to get his pistol out” and shot twice at the accused, who immediately fled. The body of the deceased was penetrated by three pistol balls, and the wounds proved fatal. According to evidence for the accused, the deceased fired the first shot while both of them were in the crowd, but upwards at an angle of about forty-five degrees. The 'accused immediately ran out of the crowd, followed by the deceased, with a pistol in his hand. The accused turned and shot at the deceased three times, and ran, and the deceased then shot at him three or four times as he fled.
As there must be another trial because of the failure to instruct the jury as to the law of voluntary manslaughter, it is not necessary to pass upon the other grounds of the motion for a new trial, as the questions involved are not likely to be again raised.
Judgment reversed.