Opinion
37058.
DECIDED FEBRUARY 24, 1958.
Involuntary manslaughter. Walton Superior Court. Before Judge Cobb. November 20, 1957.
Orrin Roberts, for plaintiff in error.
D. M. Pollock, Solicitor-General, contra.
The court erred in overruling the amended motion for new trial.
DECIDED FEBRUARY 24, 1958.
On an indictment charging murder, the defendant was convicted of involuntary manslaughter in the commission of an unlawful act, and was sentenced to serve 1 to 3 years. Counsel for the defendant filed a motion for new trial on the general grounds and thereafter added 3 special grounds by amendment. The court denied the motion for new trial, and it is on this judgment that the case is here for review.
The evidence shows substantially that the mother of the defendant was in charge of a farm willed to her by her husband; that the mother had employed the defendant to assist her in supervising the farm; that the defendant lived on the farm and so did the deceased, Larce Carter (called Preacher), who married the sister of the defendant; that a dispute arose between the defendant and the deceased concerning the cultivation of some portion of the farm; that the deceased had several children, one twenty years old and several younger children; that on the day of the homicide the deceased was supposed to do some plowing on the farm and instead of doing this he got off with some other people and was drinking when he returned later in the day; that in the meantime the wife of the deceased and some of the children worked the crop which the deceased was supposed to work; that at approximately 9 o'clock at night the defendant was at the home of the deceased; that the feeling between the defendant and the deceased was not good; that the deceased did not care to take orders from the defendant; that he stated that he would do anything his mother-in-law told him to do but that he did not care to be pushed around by the defendant; that the deceased returned while the defendant was in the home of the deceased and they engaged in a controversy concerning the conduct of the defendant; that the deceased walked into his own house and passed through two lighted rooms and went into a dark room where he procured an axe; that the defendant followed the deceased into the dark room and after some words the deceased said that if the defendant "came on him" he would "knock his brains out"; that the deceased struck at the defendant with the axe; that the defendant grabbed at the axe and struck the deceased one blow on the back of the head with a piece of iron pipe which the defendant had procured from the outside of the house of the deceased; that this blow broke the skull of the deceased, from which lick the deceased died some time between then and 3 o'clock the next morning. The evidence also shows that at one time while the defendant and his sister (the wife of the deceased) were sitting on the porch, the deceased said that his wife was taking sides with the defendant and that he, the deceased, would "knock their brains out."
The evidence shows further that neither the wife of the deceased, nor the deceased, nor the defendant, thought that the blow which the deceased received seriously injured him. After the deceased was hit he remarked that he had nothing against the defendant, that they ought to live like brothers and the defendant remarked "like brothers-in-law."
1. In so far as the general grounds are concerned, should the case be tried again the evidence might be different, but should it be substantially the same as before, it would be sufficient to sustain a verdict of guilty.
2. Special ground 1 assigns error in that it is contended that the court failed to charge the jury the law relating to self-defense. The evidence shows that the defendant was on the premises in the first instance as the agent of his mother because of work which was to be done on the property by the deceased. The defendant followed the deceased into the house where the deceased went to procure an axe. It is our opinion that the evidence regarding this incident, as well as the whole circumstances surrounding the killing (not merely the defendant's statement), would have authorized a charge on self-defense. It will be noted that the court did not charge on self-defense, but did charge on one of the exceptions to this rule of law to the effect that where one leads another to believe he is about to be assaulted and thus creates an apparent emergency it would be no defense to him that the other party undertook to defend himself, and a struggle ensued. This principle of law is an exception to the self-defense rule. The court's failure to charge on self-defense, which was prejudicial to the defendant, taken in connection with his charge on the impropriety of creating and taking advantage of an apparent emergency, although correct in itself, is an example of the prejudicial result of charging only a part of the law relating to a subject. From the charge as a whole the jury was apprised only of those rules of law which would lead to conviction (the killing having been admitted) and not of the rules of law relating to the same subject matter which would lead to acquittal on the theory, equally justified, that the deceased rather than the defendant was the instigator of the quarrel. The emergency rule as charged was abstractly correct, and its charge would not have been error had the law of self-defense, to which it forms an exception, been charged. However, the failure to charge on the one while stressing the other rendered the whole charge inaccurate and prejudicial so far as the only defense in the case, that of self-defense, is concerned. Special ground 3 is so interrelated to what is said in this division, that the same ruling applies to special ground 3.
3. Special ground 2 assigns error in that the court failed to charge, without a request, the law relating to the right of the defendant to protect his sister from injury. This question was not justified from the evidence and the court was correct in failing to charge this principle of law.
The court erred in denying the amended motion for a new trial.
Judgment reversed. Townsend and Carlisle, JJ., concur.