Opinion
33581.
DECIDED JULY 16, 1951.
Manslaughter; from Thomas Superior Court — Judge Lilly. February 21, 1951.
Forester Calhoun, for plaintiff in error.
J. B. Edwards, Solicitor-General, Titus Altman, contra.
1. A special ground of the motion for new trial, assigning error upon the refusal of the trial judge to admit in evidence a certified copy of an order of Thomas Superior Court "padlocking," subsequently to the homicide, the place wherein the deceased was killed, where no copy of this order is embodied therein or attached as an exhibit nor does such order otherwise appear in the record, is incomplete and will not be considered. Besides, under the facts, no error appears by reason of the court's refusal to admit this order in evidence.
2. A mistrial is not required because the solicitor-general during the course of his argument to the jury, said, "the burden is on the State to prove beyond a reasonable doubt that the defendant is guilty of murder. I submit that the State has carried this burden and that this defendant is guilty of murder as charged."
3. The charge that "provocation by threats, menaces, or contemptuous gestures shall in no way be sufficient to free the person killing from the guilt and crime of murder" was correct and applicable.
4. The court, having fully charged the jury as to the law of "reasonable fears," did not err in refusing to charge that "mere words, threats, or menaces will never be sufficient to reduce a crime from murder to manslaughter, yet they are sometimes sufficient to justify the fear of a reasonable man that his life is in danger, and, therefore, authorize his acquittal."
5. It is the duty of the court to instruct the jury, when requested, on an issue made by the defendant's statement, when the statement of the defendant, if believed, would authorize the jury to acquit the defendant or to convict him of a lesser offense than that with which he was charged, where the principle of law embodied in such request is a correct one and where the same is not substantially covered by the charge of the court as a whole.
DECIDED JULY 16, 1951.
John Henry Olds was indicted by the grand jury of Thomas County and charged with the offense of murder by shooting on May 22, 1950, Lillie Mae Olds, his wife, with a shotgun. The defendant entered a plea of not guilty, and on October 24, 1950, he was tried in the Superior Court of Thomas County for the murder of his wife.
The jury were authorized to find from the evidence adduced by the State the following: One witness for the State testified that on the night of May 22, 1950, she saw the deceased, Lillie Mae Olds, in the Sonny Boy Club in Thomas County, Georgia; that the deceased was standing at the counter and the witness was standing with her; that the first time she saw the defendant at the club on said date, he had the shotgun aiming to shoot; that the defendant was standing about three or four feet from the door facing the deceased and the witness; that the defendant did not say anything, he just shot and Lillie Mae Olds fell to the left of the witness, flat upon her face; and that after he shot his wife he just pulled the shell out and tried to get another one in. The witness further testified that she saw the defendant at his wife's house just before she (the witness) and the deceased left Bainbridge to go to Thomasville and he told "Lillie Mae he was tired of the G — d — way she was doing."
Another witness for the State testified that he saw the defendant on May 22, 1950, in Thomasville at this club; that the witness was sitting at a table looking at the front door when the defendant rushed in with the shotgun; that the defendant walked to about the middle section of the building and had the gun in a shooting position; that after firing the shot the defendant turned to get another shell when he was overpowered; that the defendant was about twelve or fourteen feet away from his wife when he fired that shot; and that if he said anything the witness did not hear him.
A third State witness testified that he was at this club on May 22, 1950 and saw the defendant there; that the witness was standing up at the counter when he first saw the defendant and he was 12 or 13 feet from the witness; that the witness did not see the defendant do anything but fire the shotgun; that the girl that was shot fell; and that if the defendant made any statement before he fired the shot the witness did not hear him. This witness testified that Lonnie McGowan was standing some six or seven feet from "us" when the shooting took place and was not up there by the woman that got shot.
The defendant introduced evidence of his good character and also to the effect that his wife and he were having marital troubles.
A witness for the defendant testified that he was at the Sonny Boy Club on the evening of May 22, 1950; that the witness was standing opposite the piccolo and the defendant's wife and Lonnie McGowan were standing at the counter "right opposite the piccolo"; that the defendant said something to his wife just before the shooting, but the witness could not understand what he said because the piccolo was playing; that the defendant's wife and McGowan were standing "kinder" parallel to each other and when he (the defendant) walked in there he said something, and at that time the defendant's wife pushed Lonnie McGowan back and went around in front of him; and this was when the defendant shot; and that drinking and dancing were going on at this club.
The defendant made a statement in which he claimed that his wife was running around with Lonnie McGowan, and he would often carry her to this club in Thomasville, where gambling was carried on; that the defendant tried to prevent this and on more than one occasion told McGowan to leave his wife alone and also asked his wife to stop going out with McGowan; that on the evening of May 22, 1950, his wife came from Bainbridge to Thomasville with McGowan, over the defendant's protest; that he got in his car and came to Thomasville to get his wife; that "I didn't go over to kill him or her, but I did go over with the intention to kill him if he tried to kill me"; that when he got to the club McGowan and the defendant's wife were standing by the counter, and the defendant walked in with the shotgun to about 25 feet from McGowan and told him that he had requested him not to bring his wife to this place any more; that McGowan backed up and the defendant told his wife to come on out and "let's go home"; and that she ran behind McGowan and McGowan "made in his bosom for a pistol to shoot me and I throwed up my gun and when I throwed it up he fell out in the floor and she got shot."
The evidence for the State in rebuttal tended to refute the contention of the defendant that he shot at McGowan and hit his wife by accident. There was evidence that the defendant was separated from his wife at the time of the homicide. A daughter of the deceased by a former marriage testified that "John Henry Olds was not living with my mother at the time of her death"; and that "it had been about five weeks since they had lived together"; that "the cause of the separation was he cut her," and she had to go to the hospital; and that the defendant had previously in 1947 shot his said wife and had also shot and wounded the witness, who was at that time about 12 years old.
The jury returned a verdict finding the defendant guilty of voluntary manslaughter and he was sentenced to serve from ten to fourteen years in the penitentiary.
The defendant moved for a new trial on the general grounds and by amendment added five special grounds, which will be dealt with in the accompanying opinion. The court overruled the defendant's motion for a new trial, as amended, and to this judgment the defendant excepts.
1. In special ground one of the defendant's motion for a new trial, he assigns as error the refusal of the trial court to admit in evidence a certified copy of "an order of the Superior Court of Thomas County, Georgia, padlocking the Sonny Boy Club as a nuisance." This club was the place wherein the homicide occurred.
A copy of this order is not embodied in this ground of the motion for new trial nor appended thereto as an exhibit, nor does the same otherwise appear in the record. It follows, therefore, that this ground is not complete and understandable within itself.
However, no error appears by reason of the exclusion by the court of this evidence. The fact that sometime after this homicide, the club wherein the same took place was closed by court order as being a nuisance does not render such evidence material to the issues before the jury. There was evidence before the jury that drinking, gambling and dancing took place at this club prior to the homicide, and the jury were authorized to find that the defendant's wife went to the club on more than one occasion.
2. In special ground 2, the defendant insists that the trial court erred in failing to grant a mistrial on motion of his counsel, because of certain improper remarks made by Sol Altman, Esq., one of the State's counsel, during the course of his argument to the jury, to wit: "The burden is on the State to prove beyond a reasonable doubt that this defendant is guilty of murder. I submit that the State has carried this burden and that this defendant is guilty of murder as charged." The court overruled the motion and did not rebuke or correct counsel for making such remarks.
No error appears from the refusal of the court to grant a mistrial. Counsel for the State was within his province in making this statement during his argument of the case to the jury. While the defendant was found guilty of voluntary manslaughter only, a verdict finding him guilty of murder as charged in the indictment would have been authorized under the evidence. There is a difference in the case at bar and the remark dealt with in Broznack v. State, 109 Ga. 514 ( 35 S.E. 123). In that case the solicitor stated "I would not appear in this case if I did not believe the defendant to be as guilty as any man that was ever tried in a courthouse." In the instant case, counsel simply stated that the State had the burden of proving the defendant guilty of murder and had carried this burden. See Sparks v. State, 59 Ga. App. 883 ( 2 S.E.2d 506); Forster v. State, 60 Ga. App. 598 ( 4 S.E.2d 498); Byrd v. State, 72 Ga. App. 840 ( 35 S.E.2d 385); Wells v. State, 194 Ga. 70 ( 20 S.E.2d 580).
3. The charge of the court, complained of in special ground 3 that "provocation by threats, menaces, or contemptuous gestures shall in no way be sufficient to free the person killing from the guilt and crime of murder," is not error. See Robertson v. State, 162 Ga. 1, 6 ( 132 S.E. 418). Said charge did not confuse and mislead the jury and did not have the tendency of eliminating from the jury's consideration the doctrine of "reasonable fears." Robertson v. State, supra. The foregoing excerpt was taken from the provisions of Code § 26-1007, which section defines voluntary manslaughter, and such excerpt constitutes a correct principle of law, applicable under the evidence.
4. In the fourth special ground error is assigned by the defendant on the refusal of the court to give in charge to the jury the following written request, viz: "Mere words, threats, or menaces will never be sufficient to reduce a crime from murder to manslaughter, yet they are sometimes sufficient to justify the fear of a reasonable man that his life is in danger, and, therefore, authorize his acquittal." The charge of the court as a whole sufficiently covered the above principle and it was not error for the court to refuse to charge the jury in the exact language of such request. The charge of the court as a whole fully, clearly and fairly presented and covered the issues involved and gave to the defendant the full benefit of the law applicable to "reasonable fears."
5. It is set out in special ground five of the motion for new trial that the defendant timely presented the following written request to charge: "If a person shoots at one person and kills another, under circumstances wherein the person doing the shooting would be justified in killing the person for whom the load was intended, the killing would be homicide by misadventure and no guilt would attach to the person doing the shooting. Apply the above rule of the facts of this case: If you believe from the evidence that the accused, John Henry Olds, shot at Lonnie McGowan, and by misadventure the load hit and killed Lillie Mae Olds, and you further believe that the accused under the circumstances would have been justified in killing Lonnie McGowan, then no guilt would attach to the accused, John Henry Olds, and he should be acquitted." This request embodies a correct principle of law ( Butler v. State, 92 Ga. 60, 19 S.E. 51; James v. State, 83 Ga. App. 847, 65 S.E.2d 55), and under the statement of the defendant, particularly considering same along with the evidence, this principle of law was applicable. This issue was raised by the defendant's statement and it was error to refuse the request embodying the same, where the principle of law therein contained was not sufficiently covered by the charge of the court as a whole. If the jury believed the statement of the defendant, which the jury had a right to do, they would have been authorized to have acquitted him, in that the jury would have been authorized to find that the defendant did not shoot at his wife but at McGowan, and Lillie Mae Olds, the deceased, was struck when she ran behind McGowan at the moment the trigger was pulled and the gun fired, and that the defendant shot at McGowan as the latter reached in his bosom for a pistol with the intention of shooting the defendant. See, generally, Brown v. State, 12 Ga. App. 722 ( 78 S.E. 352); Mulling v. State, 18 Ga. App. 205 ( 89 S.E. 221); Perry v. State, 108 Ga. 384 ( 34 S.E. 2). Here the defendant stated in substance that he had warned Lonnie McGowan to quit running around with the defendant's wife, taking her to night clubs and getting her mixed up in the numbers game; that McGowan told him he would carry her anywhere she wanted to go, and if he tried to prevent it he would blow his brains out; that on the night in question Lonnie McGowan took the defendant's wife to the club and the defendant followed them; that he walked in and reminded McGowan he had asked him not to bring his wife there; that his wife ran behind McGowan and just at that instant the defendant saw him reach in his bosom for a pistol with the intention of shooting the defendant, and the defendant then shot at McGowan, but at that moment McGowan dropped to the floor and the load hit and killed his wife instead.
While the jury found the defendant guilty of a lesser offense than that charged, to wit, voluntary manslaughter, it appears that the jury could have acquitted him, had they believed his statement that this man McGowan reached in his bosom for a pistol to shoot him and that he then "throwed up my gun and when I throwed it up he fell out on the floor and she got shot."
It follows that the court erred in refusing this timely written request to charge a principle of law, which was applicable under the defendant's statement and not covered by the charge of the court as a whole. A new trial is awarded to the defendant because of this error.
6. Because of the error of the court pointed out above, a new trial is granted to the defendant and it becomes unnecessary to pass upon the sufficiency of the evidence.
Judgment reversed. MacIntyre, P. J., and Townsend, J., concur.