Warnack v. State
3 Ga. App. 590
Ga. Ct. App.
1908
Check Treatment
Hill, C. J.

(After stating the facts.)

1. This court has, in Lightsy v. State, 2 Ga. App. 442 (58 S. E. 686), and in Holland v. State, ante, 465 (60 S. E. 205), fully covered the exceptions made to the charge of the court relating to sections 70, 71, and 73 of the Penal Code, defining the two branches of the law of justifiable homicide. Following numerous decisions of the Supreme Court, we have endeavored to clearly point out the difference between these sections, as applicable to the law of justifiable homicide therein embraced, and to indicate the cases to which the sections are respectively applicable, and in what manner they should be given in charge where applicable. Applying the law as laid down by these decisions to the facts in this case, we think the court erred in charging §73 of the Penal Code; and also in charging this section in such a manner as to lead to the conclusion that it qualified and restricted the right of self-defense as-defined in sections 70 and 71. In no view of the evidence in this case was there any mutual combat. Mutual combat, in the meaning of §73, is a, mutual fight following a mutual intention to fight with felonious purpose. The defendant was certainly not engaged in any combat with the deceased; nor was his brother, in whose behalf he interfered and struck the fatal blow, engaged in a fight with the deceased, at the time the blow was given. The deceased had hold of the defendant’s brother with his left hand, and was threatening him. with a stick, which he held in his right hand, unless he took back the opprobrious words that he had used to him. The *595brother had no weapon of any sort, and, according to the testimony for the State, was doing nothing to the deceased, but was simply standing in a passive attitude, and not in an]1- manner resisting, by ■combat with the deceased, the assault which the deceased was making upon him because of such opprobrious language. It is perfectly clear, therefore, that the law of justifiable homicide resulting from mutual combat has no application to the facts in this ease.

2. In our opinion, the court should have given in charge the law of involuntary manslaughter. When, from the evidence or the statement, some doubt, although slight, might arise as to the intention to kill, the court should give in charge the law of involuntary manslaughter. If, in addition to the doubt of intention to kill, there is also some question as to whether the act from which death resulted was an unlawful or a lawful act, both grades of involuntary manslaughter should be submitted to the jury. Jackson v. State, 76 Ga. 474; Taylor v. State, 108 Ga. 384 (34 S. E. 2); Farmer v. State, 112 Ga. 80 (37 S. E. 120); Jordan v. State, 124 Ga. 780 (53 S. E. 331); Dorsey v. State, 126 Ga. 633 (55 S. E. 479); Joiner v. State, 129 Ga. 295 (58 S. E. 859). The evidence shows no previous ill feeling between the parties, no premeditation or preparation. The anger of the deceased was aroused by the opprobrious words used to him by the defendant’s brother. He grabbed up a plank and went over the fence separating him from the brothers, took hold of the collar of the brother who had used the opprobrious language, and demanded with an oath that he take back the language, at the same time holding the plank in a threatening'position. The defendant, seeing the attack upon his brother, hastify took up the brake-stick from the wagon in which he was sitting, and struck the deceased on the head. The one witness for the State sa3rs that he struck him from behind and without a word of warning. The brother testified that the defendant struck the deceased from the side, and after repeated requests made by him to the deceased not to hit his brother, and to “turn him loose.” The statement is to the same effect. Taking the evidence as a whole, we think the law of justifiable homicide in self-defense, as defined by sections 70 and 71 of the Penal Code, and manslaughter, both voluntary and involuntary, was applicable. If the jury believed that the defendant struck the blow in defense of his brother against one who was at the time really or apparently *596endeavoring by violence to commit a felony on his person, and the circumstances were sufficient to excite the fears of a reasonable man that such was the purpose of the deceased, the defendant ■would be justifiable. If he struck the deceased not for the purpose oí defending his brother from what he honestly believed to be a felonious assault, but from sudden heat of passion aroused by the attack upon his.brother, intending to kill the deceased, he would be guilty of voluntary manslaughter. If he struck the deceased with no intention to kill, and only to prevent injury to the person of his brother, less than a felony, he would be guilty of involuntary manslaughter. If, under all the' circumstances, he had no legal right to interfere at all to prevent an injury to his brother, but he did so without any intention to kill, but simply to prevent such injury, he would be guilty of involuntary manslaughter in the commission of an unlawful act. If, however,' under all the circumstances, he had the right to interfere to prevent the deceased from striking his brother with the plank, even though he thought that the deceased intended only to assault and beat, and not to seriously injure his brother, and he struck suddenly, with -no intention to kill, his offense would be involuntary manslaughter in the commission of a lawful act without due caution and circumspection. There is some evidence in the record to authorize either one of the conclusions above indicated, and the court should have given in charge the law applicable to each one of them.

3. The right of a brother to defend a brother is a legal right, and the court should have so charged, and not have left the question to the jury as one of fact. Under the common law, the right of defense was given to nearly all of the domestic relations, and it certainly can not be doubted that this right is given by the law to brothers, brothers and sisters, sisters, and husband and wife, as well as to parents and children. Section 74 of the Penal Code, in expressly giving the right of mutual protection to parents and children, was not intended to be exclusive, for section 75 gives the same right of mutual protection to all other relations which stand upon the same footing of reason and justice as those of parents and children; and certainly the right of the brother to protect his brother falls within this category. Armistead v. State, 18 Ga. 708; Alexander v. State, 118 Ga. 27 (44 S. E. 851).

*5974. Under the special facts of this case, the court did not commit harmful error in making the right of the brother who was assaulted by the deceased the criterion by which to determine the right of the defendant. The defendant heard the provocation in the use of the opprobrious words by his brother; he -saw the size of the plank with which the deceased made the assault, and he was probably as fully informed as his brother of all the facts and circumstances — the res geste — of the difficulty between his brother and the deceased. Let us briefly consider the case from the standpoint of the brother who was assaulted by the deceased. Under section 103 of the Penal Code, opprobrious words may justify a simple assault, or an assault and battery, but they, do-not justify an attack with a deadly weapon. Therefore, if the deceased was •making an assault upon the brother with a weapon likely to produce death, or was really or apparently about to commit a felony upon his person, the fact that the latter had provoked the attack by opprobrious words would not take awajr his right of self-defense. And what the brother assaulted could do for himself in his defense his brother could do for him. We would not, however, be understood as holding that a brother who interposed to defend a brother from an apparently felonious assault would not in any case be justifiable unless the brother who was being- assaulted would himself be justifiable. This question is to be determined by the facts and circumstances as they appear to the brother who interposes for the purpose of defense. We can imagine cases where the defendant brother would be justifiable in defending his brother, where the brother himself might not be blameless. His conduct is not to be judged by the actual facts, but by the facts as they appeared to him at the moment of his interposition in behalf of his brother. Alexander v. State, 118 Ga. 27 (44 S. E. 851), People v. Curtis, 52 Mich. 616 (18 N. W. 385).

For the reasons stated, we think the case should be again tried.

Judgment reversed.