51 Ga. App. 455 | Ga. Ct. App. | 1935
Everett Thomas and Robert Pelfrey were jointly indicted for the murder of Carl Lawrence. Robert Pelfrey was found not guilty, and Everett Thomas was convicted of voluntary manslaughter. Thomas excepts to the overruling of his motion for new trial. The defendant was a constable, and had on some previous occasions been called to arrest the deceased. It was developed by the evidence that 'there had been previous trouble between the defendant and the deceased, and that possibly a continuation of the previous differences was in effect. The evidence for the State, given by the brother of the deceased, was to the effect that he and his brother were at a church during night services and had gone down to a spring, and, while returning, met the defendant and Robert Pelfrey, and that, without a word being spoken, Robert Pelfrey struck the deceased with some instrument and knocked him down, and while he was falling the defendant shot and killed him, and then turned the pistol on the witness and shot at him twice. The evidence for the defendant tended to show that when the parties met, the deceased picked up a rock and knocked the defendant down, and that the deceased was reaching for another rock, and the defendant, while on one elbow, shot and killed him. There was evidence showing that the deceased a short time previous thereto had prevented the defendant from arresting him, and had made threats against the life of the defendant. There was sufficient evidence to show a probable continuation of bad feeling engendered the year before, as well as some weeks prior to the killing.
' Error is assigned upon the refusal of the court to allow in evidence certain indictments against the deceased, charging him with assault with intent to murder the defendant. . From the state of the record this court is unable to determine when these indictments were returned, and whether or not, even if they were otherwise admissible, such indictments had any obvious connection with
Complaint is made that the court charged the jury with reference to voluntary manslaughter, it being insisted that the evidence for the State, if believed, made a case of murder, while the evidence for the defendant made a case of justifiable homicide, and that there was no sudden heat of passion. With this we can not agree. The defendant’s statement as well as his evidence shows that he was knocked down by a rock thrown by the deceased, and that while the deceased was making another effort to strike him, he pulled his pistol and killed the deceased. The jury was warranted in finding, in such circumstances, that the rock was not a deadly weapon or that the killing was not solely in self-defense, but was in a sudden heat of passion and the result of a mutual intent to fight. It has been held too many times to require any further citation of authorities that where it is inferable, either from the evidence or the defendant’s statement, that there was a mutual intent to fight, it is proper to charge the law of voluntary manslaughter. The judge did not err in so charging in the present case.
The remaining assignments of error are without merit. The evidence supports the verdict, and the trial judge did not err in overruling the motion for new trial.
Judgment ajfw'med.