109 Ga. 142 | Ga. | 1899
L. M. Sumner was indicted for the murder of James Powell, and was found guilty of the offense of voluntary manslaughter. Plis motion for a new trial was overruled by the presiding judge, and he excepted to that decision.
Henderson Powell, a witness for the defendant, testified, among other things, that the deceased cursed the accused, and the latter came walking towards the deceased and said, “Powell, you know G— d— well that I am not scared of you,” and then the deceased began trying to get to him. I had hold of Powell at the time, and turned him loose, and when Powell got -within two steps of the accused the latter raised his hand and went to shooting. Hid not see Powell have any knife, but saw a knife on the floor open. The accused told the deceased several times to let him alone, that he did not want to hurt him and he did not want the deceased to hurt him. Gould not tell vdiether Powell was standing still when he was shot or not. Edwards testified, that he went into the' store and saw that something was the matter; that he spoke to the accused and asked him what did it all mean; that he replied to him, “Don’t talk to me, talk to the other man.” He then went to Powell and told him to go out of the store and have no row. Powell had his knife out. Powell did go out of the store, and then returned. The accused was then behind the counter, and Powell was on the outside of it. Witness held to Powell, and
We do not refer to any part of the evidence, which is very voluminous, except such as would seem to authorize a charge and verdict of voluntary manslaughter; but it appears that the parties were involved in a difficulty, that the accused placed himself behind the counter, that the deceased advanced on him, some-of the witnesses say with a knife,'some did not see any. It is apparent from much of the evidence that at the time of the shooting the accused was not in imminent danger; but from it the jury, we think, might have considered that the deceased made an assault on the accused, and, if not an assault, that the circumstances attending his advance to the accused were the equivalent of an assault sufficient to arouse passion which prompted the shooting. If so, a verdict of manslaughter would be supported, and it was the duty of the presiding judge to charge the law of that grade of homicide. As to what are equivalent circumstances, see Murray v. State, 85 Ga. 381. Where the attempt to commit an injury is between provocation by words and an attempt to commit a felony, the verdict for manslaughter is proper. Buchanan v. State, 24 Ga. 282. A
Affirmed.