Underwood v. State

146 Ga. 137 | Ga. | 1916

Atkinson, J.

1, 2. The rulings announced in the first and second headnotes do not require elaboration.

3. The homicide occurred shortly after nightfall, about twenty steps from a path leading from the house of the deceased to a spring two or three hundred yards distant. The deceased, Wes Barclay, his son Charles, the accused, Claude Underwood, and Chester Whatley and another person were at the scene of the homicide. There was evidence for the State tending to show that all of the persons named were seated on the ground, some of them drinking (Wes Barclay included), and all except Wes were gambling, when a quarrel ensued between the members of the party other than Wes. During the quarrel the accused drew his pistol, threatening to shoot Charles, when the deceased raised up and said “Boys, don’t do that.” The accused thereupon fired upon Wes, producing a wound which proved fatal after a few days. There was a conflict in the evidence as to the details of the shooting, but Chester Whatley testified to.the following, in substance: During the afternoon he had been a guest at the house of the deceased, and started to his home by way of the path, and upon reaching the scene of the rencounter he found the accused and Charles and the deceased quarreling about money. The accused charged Charles with having his money, which Charles denied, and thereupon attempted to draw a pistol. The accused grabbed his arm in an effort to get the pistol away. While those two were thus engaged, the deceased, having another pistol, snapped it at the accused, and then shot at him once and again, and would have shot more had the pistol not failed to fire when he attempted to shoot. The accused succeeded in getting the pistol from Charles, who ran away; and the accused then shot the deceased with the pistol taken from Charles, producing the mortal wound. According to this evidence, under application of the rulings announced in Pierce v. State, 132 Ga. 27 (63 S. E. 792), and Clements v. State, 140 Ga. 165 (78 S. E. 716), voluntary manslaughter was involved, and it was erroneous for the court, without request, to fail to instruct the ju-ry upon that grade of homicide.

Judgment reversed.

All the Justices concur.