Opinion
33516.
DECIDED APRIL 19, 1951. REHEARING DENIED MAY 16, 1951.
Manslaughter; from Fulton Superior court — Judge Shaw. January 26, 1951.
W. Owen Slate, Charles W. Bergman, for plaintiff in error.
Paul Webb, Solicitor-General, R. A. Blackwood, Charlie O. Murphy, contra.
1. ( a) A charge on voluntary manslaughter is proper where, as here, there is some evidence authorizing a verdict convicting the defendant of this crime.
( b) Where, as here, there is some evidence tending to establish the theory that the homicide occurred as a result of a mutual intent to fight between the parties involved in the combat, including the deceased and the defendant, there is no error in giving this rule of law in charge to the jury.
( c) Where, as here, the evidence demands a finding that the defendant intentionally used a deadly weapon in a manner likely to produce death and this act directly results in a homicide, neither the law of involuntary manslaughter nor that of accident, misfortune or misadventure is applicable, even though the act of the defendant was intentionally directed at a person different from the one actually killed.
2. For reasons set forth more fully in the corresponding division of this opinion, it was not error requiring reversal in the absence of request to fail to include the father of the defendant in the charge to the jury on the subject of the right of the defendant to kill if necessary to prevent a felony from being committed upon herself or her sister.
3. The general grounds of the motion for new trial are without merit.
DECIDED APRIL 19, 1951. REHEARING DENIED MAY 16, 1951.
Louise James was placed on trial in the Superior Court of Fulton County on an indictment charging her with the murder of Claudia Mae Long.
On the occasion when Claudia Mae Long was shot and killed, Alice Holmes, sister of the defendant, was also shot and killed in the same affray. Mose Long, husband of Claudia Mae and a witness for the State in this case, had previously been convicted of the homicide of Alice Holmes.
This defendant was convicted of voluntary manslaughter and since the evidence, although in sharp conflict, must be construed by this court in its light most favorable to support that verdict, the jury trying the case were authorized to find facts substantially as follows: that the defendant and her husband occupied a house located at 568 Jones Avenue in the City of Atlanta; that several days prior to August 20, 1949, the date of the shooting, Mose Long and his wife rented a room in this house from the defendant; that this room was located near the street entrance and the part of the house occupied by the defendant and her husband was down a hallway from it; that almost immediately after the Longs moved into these premises quarrels over trivial matters broke out between the families, resulting in several police investigations and at least one arrest and trial in the recorder's court; that on the day of the shooting a salesman had knocked on the door and was answered by Mose Long, who told the salesman he did not want any of his wares; that upon this the defendant came out of the door of her room into the hall and called upon Mose Long to let her answer the door when people knocked; that Claudia Mae Long who was then in her room, upon hearing a conversation between the defendant and her husband, charged the defendant not to be talking to her husband; that Mose Long then went back into the room occupied by his wife and himself and proceeded to eat a meal which was on the table; that he then heard a shot fired from the end of the hall where the defendant lived and was seen by him immediately before he went into his room; that this shot was answered by a shot at his end of the house; that Claudia Mae then stepped back into the room where Mose was and the defendant approached the door of that room and began firing at Claudia Mae through the door; that Mose then carried his wife who was lying on the floor in her room out the front door to the sidewalk; that the defendant came to the door and stated to him, "Don't put her in the car; she killed my sister"; that at this time Louise had a 38 Smith Wesson revolver in her hand and Claudia Mae who was not yet dead had a 32 revolver in her hand; that while this shooting was going on in the house Alice Holmes was in the James end of the house together with Terrell Britton, the aged father of the defendant and Alice Holmes; that Alice Homes went out the front door while the shooting was going on and fell dead on the sidewalk; that an examination of her body revealed three bullet wounds, but only one bullet was recovered from her body and it was that of a 32 caliber revolver. The body of Claudia Mae Long was not examined for the location of bullet wounds but it was stipulated by counsel that her death was caused by bullet wounds from the 38 caliber Smith Wesson revolver which was in the hands of the defendant immediately following the shooting and which she surrendered to the officers upon their arrival at the scene.
The only remaining eyewitness was Terrell Britton, father of the defendant and Alice Holmes. He testified as a witness for the defense substantially, that Mose Long fired a revolver from his end of the house down the hall toward that part occupied by the defendant; that his first shot struck the witness in the face near his left temple, resulting in a slight flesh wound; that thereafter Mose Long continued to shoot in that direction and, as he fired, Alice Holmes went out the front door by him; that, when the shooting began, the defendant was standing in the door of her room and went back into her room and came out into the hall with her pistol; that she and Mose Long then exchanged several shots at each other; that, as Mose Long was shooting, his wife Claudia Mae was holding him around the neck, and this action resulted in the defendant's shooting Claudia Mae while she was trying to defend herself by shooting at Mose Long.
The screen door to the room occupied by the Longs showed four bullet holes passing through the wire from out in the hall going into the room where Claudia Mae Long fell. This screen door also showed one smaller bullet going from the inside of the room where Claudia Mae Long was out into the hall. A piano was located in the hallway near the Long doorway. It had one 38 bullet in it.
The defendant in her statement contended that Mose Long started shooting at her sister Alice Holmes, her father and herself; that she retreated into her room and returned with a pistol and began returning Long's fire; that Long and his wife were so close together that as she attempted to shoot Long the bullets from her pistol struck the deceased.
Upon her conviction of voluntary manslaughter the defendant filed a motion for a new trial on the general grounds which was later amended by adding nine special grounds. The overruling of this motion is assigned as error.
1. Grounds 1, 2, 6, 7, 8 and 9 of the amended motion for a new trial are considered together. Grounds 1, 2 and 7 complain that the trial court erred in failing to charge on the subject of involuntary manslaughter; ground 6 complains that the court did charge on mutual combat; the 8th ground complains that he failed to charge the law as to accident, misfortune and misadventure, and the 9th that he erroneously charged the law as to voluntary manslaughter.
The court fully charged the law as to murder, voluntary manslaughter, mutual combat and justifiable homicide, and we believe that these charges covered all the issues presented by the evidence in the case. Under the State's theory, as shown by the testimony of Mose Long, the defendant and Claudia Mae Long exchanged shots in the hall; Claudia Mae re-entered her room where Long was and Louise came up the hall and fired at her through the screen door; Claudia Mae fell, fatally wounded, and Louise continued to fire at her until five shots had been fired in all. This version of the encounter demanded a charge on murder. However, the defendant's theory of the case, as evinced by her statement and the testimony of her father, Terrell Briton, was that after an altercation between the parties Mose Long had fired down the hall, hitting and killing the defendant's sister, Alice Holmes; that the defendant, in an effort to protect herself and her sister, whom she did not at that moment know had been fatally wounded, ran to get her pistol; that when she came back she noticed that her father also was bleeding, apparently from a bullet wound; and that she then ran up the hall with the intention of stopping Mose Long and fired at him but accidentally hit and killed his wife instead. The court charged justifiable homicide on this contention, and of course no error is assigned on that charge. The evidence further showed a course of violently increasing quarrels between the participants; that the defendant and the Long woman had previously been arrested because of a fight a day or so before; that the quarrel on the morning in question arose as the result of words exchanged between the parties over the trivial occurrence of a salesman being turned away from the door; that a sudden and violent argument immediately preceded the shots. Where there is some evidence which would authorize a verdict of voluntary manslaughter the charge is proper. Angry v. State, 17 Ga. App. 161 (1) ( 86 S.E. 403); Sumner v. State, 109 Ga. 142 (1) ( 34 S.E. 293); Pierce v. State, 132 Ga. 27(1) (63 S.E. 792). The jury would have been authorized to have found, construing the evidence as a whole, that there was no premeditation or malice involved in the killing, but that the defendant, believing that Claudia Mae Long had wounded her sister was seized by a sudden heat of passion and, considering nothing else, grabbed up the weapon and fired at her. Indeed, the firing of the series of shots by the defendant might well bear out this theory. Accordingly, the charge on voluntary manslaughter complained of in the ninth ground was without error.
The same evidence might have authorized the jury to have found that the series of quarrels led to mutual combat between the two families which culminated in this shooting affray. Where the evidence establishes the theory that the homicide occurred as a result of a mutual intent to fight between the parties involved in the combat, including the deceased and the defendant, there is no error in presenting this theory of the case for the consideration of the jury. Garner v. State, 6 Ga. App. 789 (5) ( 65 S.E. 842). The sixth ground is therefore without merit.
Where there is anything deducible from the evidence or the defendant's statement which would tend to show that the offense of involuntary manslaughter was committed, it is the duty of the court to charge on this subject. Wager v. State, 74 Ga. App. 729 ( 41 S.E.2d 342); Ridley v. State, 81 Ga. App. 737 (4) ( 60 S.E.2d 249); Greenway v. State, 59 Ga. App. 461 ( 1 S.E.2d 417); Bell v. State, 71 Ga. App. 430 (6) ( 31 S.E.2d 109). If, however, involuntary manslaughter would not be authorized under the evidence it is not error to omit to give this principle of law in charge. Metts v. State, 74 Ga. App. 708 ( 41 S.E.2d 328); Barbee v. State, 175 Ga. 307, 310 ( 165 S.E. 232); Welch v. State, 176 Ga. 410 ( 168 S.E. 256); Smallwood v. State, 45 Ga. App. 587 ( 165 S.E. 476). Involuntary manslaughter is the unintentional killing of a human being. It may result from the doing of an unlawful act or a lawful act in an unlawful manner. If such killing happens in the commission of an unlawful act which in its consequences naturally tends to destroy the life of a human being it is deemed to be murder. Code, § 26-1009. The killing in this case was the result of the use of a pistol, a weapon likely to produce death when used in the manner in which it was used, and the act of aiming and firing the pistol was an unlawful act, unless the homicide was justifiable. The question of whether or not the shooting was justifiable was submitted to the jury by the trial court in his charge. The evidence, however, did not authorize a charge on involuntary manslaughter under any theory, since it fails to show that the defendant aimed and fired the pistol unintentionally, or even that she did so without any intention to kill. She contends that she intended to shoot and hit Mose Long and hit his wife instead; she stated that "he had her lying over him like and her legs kind of spraddled so, I started shooting at him. I realized that she was shot because she was weak in the knees." Terrell Britton's version was as follows: "The reason that Baby shot his wife instead of Mose was that she had hold of him around the neck." At least one of these shots was fired after the defendant entered the room from the hall, and she therefore could not have been more than a few feet from them, and knew at the time she fired at him that his wife was in front of him and blocking the path of the bullet. The defendant's contention that the killing was involuntary because it was her intention to shoot Mose Long and not his wife is untenable. "The killing of an innocent bystander while making a murderous assault on another is murder. The thing done follows the nature of the thing intended to be done and the guilt or innocence of the slayer depends upon the same considerations which would have governed had the shot killed the person against whom it was directed." Montgomery v. State, 78 Ga. App. 258 ( 50 S.E.2d, 777). Where one, without justification or other circumstances of mitigation, shoots and, instead of hitting the man at whom he shoots, hits and kills another, the offense is murder. Moore v. State, 205 Ga. 37, 46 ( 52 S.E.2d 282); Charlon v. State, 106 Ga. 400 ( 32 S.E. 347); Hamilton v. State, 129 Ga. 747 (2) ( 59 S.E. 803). And where the offense, as against the person intended to be shot, would have been voluntary manslaughter, it is voluntary manslaughter as to the person actually killed. McLendon v. State, 172 Ga. 267 (4) ( 157 S.E. 475); Strickland v. State, 9 Ga. App. 552 ( 71 S.E. 919). The intent follows the bullet, and the defendant's intent to hit another than the deceased does not change the grade of the offense. Involuntary manslaughter not being in issue under the evidence, grounds 1, 2, and 7 are without merit. For the same reason ground 8 of the amended motion, which contends that the trial court erred in failing to charge the law of accident, misfortune and misadventure, is without merit, since under no phase of the evidence, including the defendant's statement, was the aiming and firing of the gun in the direction of Mose Long and his wife accidental, it being an intentional act on the defendant's part. See Solesbee v. State, 204 Ga. 16 ( 48 S.E.2d 834); Kersey v. State, 207 Ga. 326 ( 61 S.E.2d 493).
2. Grounds 3, 4 and 5 complain that the court, in charging the theory of self defense, while instructing the jury as to the circumstances in which the defendant would be justified if she killed to prevent a felony from being committed upon herself or her sister omitted to add the words, "or upon her father," and thus deprived the defendant of the defense of shooting in her father's protection. The defendant in her statement which was corroborated by her father's testimony, said that she saw her sister shot and ran into the room to get her pistol; that as she came out she saw her father standing in the hall and that he was bleeding, and that she fired the pistol up the hall at Mose Long. It is apparent that the intent to procure and use the pistol was formed when she saw her sister shot. The testimony was conflicting as to whether the father was shot or hurt in some other way and, if shot, as to who might have fired the bullet. He appears to have been standing in the hall throughout the affray, taking no part in the action. Under the circumstances here it was not error requiring reversal, in the absence of request, to fail to thus include him in the charge, which was otherwise correct.
3. The evidence authorized the verdict of voluntary manslaughter and, having the approval of the trial court, the judgment will not be disturbed by this court.
Judgment affirmed. MacIntyre, P. J., and Gardner, J., concur.