Opinion
30139.
DECIDED SEPTEMBER 30, 1943.
Assault with intent to murder; from Spalding superior court — Judge Byars. April 2, 1943.
R. L. Addleton, Robert L. Evans, for plaintiff in error.
F. E. Strickland, solicitor-general, contra.
1. "The Supreme Court recognized the right of a mere bystander to interfere to prevent a felony." Gillis v. State, 8 Ga. App. 696, 698 ( 70 S.E. 53).
2. In a prosecution for an assault with intent to murder, a felony, in order to acquit the accused on the ground that he acted only in defense of another person and was a mere bystander, the following elements must concur and be shown: (1) That the defendant was without fault on his part. (2) That the person defended was actually without fault, or that it appeared to the accused, acting as a reasonable man under the circumstances, and in the belief that at the moment of his interposition the person defended was without fault. (3) That there existed at the time, either actually or so apparently as to lead a reasonable man to the belief that there actually existed a present impending necessity to act, in order to save the person defended from the felonious injury. (4) There must have been no other reasonable mode of escape for the person defended.
3. Under the defendant's statement and one phase of the testimony, the right of a mere bystander to interfere in a difficulty to prevent a felony was involved; and it was erroneous for the judge, upon written request, to fail to instruct the jury on this subject.
4. The defendant contends that the court erred in not giving in charge to the jury the law upon manslaughter, voluntary or involuntary, because none of the evidence adduced in said trial by the State authorized a conviction of an assault with intent to murder. This ground is controlled adversely to the defendant by Reeves v. State, 66 Ga. App. 150 (2) ( 17 S.E.2d 299), and cit.
5. The defendant contends that the judge erred in failing to direct a verdict on his motion. It is never reversible error for the court to refuse to direct a verdict. Roper Wholesale Grocer Co. v. Faver, 8 Ga. App. 178 ( 68 S.E. 883); Western Atlantic Railroad Co. v. Callaway, 111 Ga. 889 (2) ( 36 S.E. 967).
6. It was contended that "the court erred in admitting, over the objection of the counsel for the defendant, the evidence of a former conviction at the time it was offered in evidence by the State, for the reason that it was highly prejudicial to the defendant, and should not have been admitted in evidence until after the jury had been instructed to retire and find either a verdict of guilty or not guilty, should have then admitted said evidence of a former conviction, and instructed the jury the law upon the question of the defendant being sentenced to serve the longest period of time." The judge properly instructed the jury the purpose for which the testimony was admitted, and instructed them to consider it for the purpose only of fixing the penalty in case of a conviction in the instant case, and that they were not under any consideration to take it into account as affecting the character or guilt of the accused in the case on trial. This contention of the defendant is not meritorious. Berry v. State, 51 Ga. App. 442, 448, 449 ( 180 S.E. 635); Reid v. State, 49 Ga. App. 429 (5, 6) ( 176 S.E. 100); Tribble v. State, 168 Ga. 699 (3- a) (148 S.E. 593).
DECIDED SEPTEMBER 30, 1943.
1. One may kill to protect another from death or a felonious bodily injury, real or apparent, and may be justified. 1 Warren on Homicide, 791, § 161. Where the defendant is charged with an assault with intent to murder, in order to justify him for an assault with intent to kill, on the ground that he acted only in defense of another person who was merely a companion or stranger and a mere bystander, the following elements must concur and must be shown: (1) That the defendant was without fault. (2) That the person defended was actually without fault, or that it appeared to the accused, acting as a reasonable man under the circumstances, and in the belief that at the moment of his interposition the person defended was without fault. (3) That there existed at the time, either actually or so apparently as to lead a reasonable man to the belief that there actually existed, a present impending necessity to so act in order to save the person defended from the felonious injury. (4) There must have been no other reasonable mode of escape for the person defended. To illustrate: by retreating or avoiding the combat, if there was one. See Mitchell v. State, 22 Ga. 211, 235 (68 Am. D. 193); Warnack v. State, 3 Ga. App. 590, 596 ( 60 S.E. 288); 1 Warren on Homicide, 799, § 161; 5 Reid's Branson Instructions to Juries, 561 (79); Burkett v. State, 154 Ala. 19 ( 45 So. 682); Gillis v. State, 8 Ga. App. 696, 698 ( 70 S.E. 53); Adams v. State, 72 Ga. 85, 89; Gossett v. State, 123 Ga. 431, 435 ( 51 S.E. 394); Wharton on Criminal Homicide (3d ed.) 270, § 171 (10), citing Irby v. State, 32 Ga. 496; Cloud v. State, 81 Ga. 444, 450 ( 7 S.E. 641).
One phase of the testimony was to the effect that Britton approached Wyatt with a knife in his hand; that a man named Westmoreland said: "Don't cut that boy;" that Britton said that he had just as soon cut the accused as Wyatt; that the defendant had not done anything but tell Britton not to cut Wyatt; that thereupon the defendant struck Britton with the ax to keep him from cutting Wyatt; that the resulting wound was serious though not fatal, and Britton was carried to the hospital; that no "domestic relations" existed between the accused and the person defended; and that the defendant knew whatever provocation, if any, that either Britton or Wyatt had for engaging in the difficulty. The accused in his statement to the jury said that he was a mere bystander, and was no party to the difficulty; that he struck Britton with an ax; that he was "not mad;" that "he was just trying to save him [Britton] from killing Wyatt." Thus, under the defendant's statement and one phase of the testimony, the right of a mere bystander to interfere in a difficulty to prevent a felony was involved. There was a written request to charge on this subject. While the judge's charge could be said to cover the law of self-defense as it related to protecting the defendant himself from injury, and the law of self-defense by the accused, if he acted in concert with Wyatt in bringing about the difficulty, or made himself a party to it, or aided and assisted in bringing about the encounter between Britton and Wyatt, we do not think it distinctly covered the law as it related to the right of a mere bystander to interfere in a difficulty in order to prevent a felony by Britton upon Wyatt; and it was reversible error to fail to instruct the jury on this subject.
2. The rulings announced in headnotes 4-6 do not require elaboration.
Judgment reversed. Broyles, C. J., and Gardner, J., concur.