Opinion
32475.
DECIDED MAY 21, 1949.
Manslaughter; from Richmond Superior Court — Judge G. C. Anderson. February 28, 1949.
W. C. Calhoun, Pierce Brothers, for plaintiff in error.
George Hains, Solicitor-General, contra.
1. The verdict of voluntary manslaughter is authorized under the evidence, under either the theory of irresistible passion or the theory of mutual combat.
2. Justification for taking human life generally is set forth in the Code, § 26-1011; and justification for taking human life under an apparent necessity is set forth in § 26-1012. If justification for the killing under these two sections is sustained by the proof, the defendant should always be acquitted of murder. Justification for the taking of human life under the Code, § 26-1014, involving the principle of mutual combat, contains elements as set forth in the opinion. If the evidence sustains these elements or essentials, the slayer must be acquitted. If it does not, the slayer is guilty of voluntary manslaughter.
3. Mutual combat was involved under the defendant's statement, and the court was authorized to charge this principle, although not required to do so.
4. In a trial for murder, a verdict of voluntary manslaughter is an acquittal of that higher offense.
DECIDED MAY 21, 1949.
The defendant was indicted for murder in the killing of his brother. He was convicted of voluntary manslaughter. His motion for a new trial, consisting of the general grounds and three special grounds, was overruled. To this judgment he excepted. Substantially, the evidence for the State shows: The defendant and his brother, Rufus Lewis, the deceased, were in Waynesboro, Georgia, in the late evening, in company with another brother, Leon Lewis. Leon Lewis and the defendant, Robert Lewis, became engaged in a difficulty. The sheriff was called but could not be located, then a police officer was called to quiet the difficulty. Before the officer arrived, the deceased had gotten the defendant into his car and carried the defendant to the home of the deceased. The two of them arrived at the home of the deceased shortly before midnight. When they arrived there, both the defendant and the deceased were drinking heavily. The wife of the deceased prepared a meal for them. While they were eating, the two of them became engaged in a difficulty concerning the difficulty which had taken place between the defendant and Leon Lewis. They walked out of the house of the deceased to the car of the deceased, which was in front of it. The defendant insisted upon the deceased carrying him back to Waynesboro. The deceased refused to comply with this request, but stated that, if the defendant would go to bed, he would carry him back to Waynesboro the next morning. The defendant still insisted on the deceased carrying him back to Waynesboro. The deceased raised the hood of the car and was attempting to in some way dismantle some portion of the motor so that the defendant could not drive the car to Waynesboro himself. While the deceased was stooping over doing this, the defendant inquired of him as to where the defendant's cigarettes were. The deceased informed him that they were in the back of the car. Whereupon the defendant went to the back of the car, opened the door, ostensibly to locate the cigarettes. He found an empty carton and informed the deceased that there were no cigarettes there. He then came out with a level which was in the car (the deceased was a brick mason), and struck the deceased over the head with it, knocking him to his all fours on the ground. There were two other parties then sitting on the porch of the house a short distance away from the car. The wife of the deceased and another woman, both of whom were sworn as witnesses for the State, and both of whom testified substantially as set out above except that the other woman testified that the defendant struck his brother, the deceased, twice with a level. During the meantime the two women went out to the car. The wife of the deceased took the defendant and led him off and told him to leave. The defendant stated that he did not have enough money to go, so the wife of the deceased gave him a quarter. The other woman assisted the deceased to his feet and to the porch. Shortly thereafter the deceased was carried by a third party to the hospital, where he died from the wounds about 7 o'clock the next morning. He never made any statement before his death.
An officer arrived at the scene of the homicide and found the defendant asleep in the car of the deceased. The officer asked the defendant why he hit his brother, and the defendant stated that he had no excuse except that he was drinking and got in a little argument. He did not state that his brother hit him or that his brother put his hands in his pockets. The officer told the defendant that the deceased was at the hospital in a dying condition from the blows. The officer further stated that the defendant asked him to carry the defendant to the hospital, but that he carried him to jail instead. The officer stated that the defendant said that he didn't hit his brother "that hard." A portion of this testimony of the officer was in rebuttal of the defendant's statement. The wife of the deceased, also in rebuttal, stated that her deceased husband did not strike the defendant before the defendant hit the deceased, and that the deceased didn't have time to put his hand in his pocket.
The defendant made the following statement: "We came in that night, and ate supper and I asked him to carry me back to Waynesboro, and he said he wouldn't do it, and I said I had to go back. I had to work every day. He went outdoors and turned the water out of the car, the block had busted, and he turned the water out of it, so I asked him about getting my cigarettes out of the car. Before I got to the car, he said, 'You ain't got no damn sense,' and I said 'Every time I come around you, you tell me that.' He said, 'You ain't got no sense, you son-of-a-bitch.' I said, 'You are one back.' He said, 'Don't you cuss me for a son-of-a-bitch,' and he backed back and started over from behind the car, and he came round the car from the left side of it and hauled off and struck me, and I said, 'Don't strike me,' and when he struck me I staggered back. He hit my head and it glanced off and he backed back up to the car, and I picked the level up and he put his hand in his pocket and said, 'God damn it, I'll kill you,' and I hit him and I wasn't trying to kill him. I was trying to defend myself. A couple of months before then he jumped on me and beat me and busted my jaw and I went to the doctor, and the doctor didn't want to do it up, and said I would have to be reported, and I said, 'No, me and my brother just had a little fuss and there won't be any law to it. . . I am forty-three years old and never been arrested for cutting or arrested for fighting or anything like that. I haven't raised any fuss, and I haven't fought anybody, no lawsuit, and never cut anybody, and I am forty-three years old and never been arrested for cutting or fighting. I never been in any trouble since my brother jumped on me. Nobody ever jumped on me except my brother."
1. It would seem that anyone by reading the record as above set forth would have little difficulty in arriving at the conclusion that the evidence sustains the verdict of voluntary manslaughter under a sudden heat of passion supposed to be irresistible as contained in the general law applicable to this phase of voluntary manslaughter. And that under the statement of the defendant, the phase or principle of voluntary manslaughter as applied to mutual combat is involved. In this view, so far as the general grounds are concerned, the verdict is authorized.
2. There are three special grounds. Special grounds 1 and 3 may discussed together. Distinguished counsel for the defendant so deal with them, and we will do likewise. Special ground 1 excepts to the following excerpt from the charge of the court: "Gentlemen of the jury, there are two defenses set up here, one is that of self-defense, and the other is what the law says is the fears of a reasonable man, so that if you believe that this defendant struck and killed the deceased and that he did so in his own self-defense, he is not guilty, or if you should find and believe that the defendant struck and killed the deceased, and when he did, it was under the fears of a reasonable man that some bodily harm was about to be done him amounting to a felony, and he acted under the influence of those fears and not in a spirit of revenge, and you so find, then the defendant would not be guilty and it would be your duty to so find. A seeming necessity, when acted upon in good faith, is equivalent to a real necessity." It is contended: (1) "that this confused the law of self-defense with the law of justifiable homicide"; and (2) that the principles of law involved of killing under a real necessity and under an apparent necessity should not have been given in immediate connection with each other without further appropriate instructions.
Special ground 3 sets forth an excerpt from the charge of the court with reference to voluntary manslaughter, as follows: "Now, gentlemen of the jury, I charge you another separate and distinct principle of law and that is the law of manslaughter. Manslaughter is the unlawful killing of a human being without malice either express or implied and without any mixture of deliberation whatever, upon a sudden heat of passion. That is what is necessary for you to find in order to reduce a homicide from a higher grade to a lower grade. In all cases of voluntary manslaughter there must be some actual assault upon the person killing, or some attempt by the person killing, or other equivalent circumstances, to justify the excitement of passion and to exclude all idea of deliberation or malice either express or implied. Provocation by words, threats, menaces, or contemptuous gestures shall in no case be sufficient to free the person killing from the guilt and crime of murder. The killing must be the result of that sudden violent impulse of passion supposed to be irresistible, for if there should have been an interval between the assault and provocation given and the homicide, of which the jury shall be the judges in all cases, sufficient for the voice of reason and humanity to be heard, the killing shall be attributed to deliberate revenge and be punished as a murder. So that, gentlemen of the jury, whether applied to the higher grade of murder or the lower grade of manslaughter, if, when the killing happened, it was done in the defendant's own self-defense, he is not guilty. If it was done under the fears of a reasonable man that some bodily harm was about to be done him amounting to a felony, he would not be guilty, and if he really acted under the influence of those fears in good faith and not in a spirit of revenge, he would be justified and should be acquitted. While the law says that provocation by words, threats, menaces, or contemptuous gestures shall in no case be sufficient to free the person killing from the guilt and crime of murder, yet when you consider whether, when he struck, he did so under the fears of a reasonable man that some bodily harm was about to be done him amounting to a felony, you may consider any such words, threats, menaces or contemptuous gestures, if you find any of them, along with the other evidence. Now I charge you that, if the homicide was committed and you find that the defendant did it and he did so under the fears of a reasonable man that some bodily harm was about to be done him amounting to a felony by the person killed, or an attempt by the person killed to commit a serious personal injury upon the defendant, or other equivalent circumstances to justify the excitement of passion or exclude all idea of deliberation or malice, either express or implied, and not in his own self defense, then, in that event, he would be guilty of manslaughter and you should so find. Persons not guilty are fully discharged by the jury."
We will quote in full the exceptions to this charge, as follows: "That such charge was mingled with a charge of justifiable homicide, as the doctrine of reasonable fears and self-defense has no connection with the offense of voluntary manslaughter, even if manslaughter was involved in the case. And such charge was harmful to movant and influenced the jury to his prejudice in the rendition of its verdict." Counsel for the defendant contends that the excerpts set forth in special grounds 1 and 3 confused the jury because the principles of law in the Code, §§ 26-1011 and 26-1012, and 26-1014, were thereby charged in such a manner as to confuse the jury in a proper application of the principle of law contained in § 26-1014.
Code § 26-1011 is the general provision of our law in regard to justifiable homicide in self-defense and in defense of habitation, etc. Code § 26-1012 is a species of self-defense under the doctrine of reasonable fears. The first of those sections involves and justifies a killing where there is an actual necessity to kill in self-defense. The latter of those sections justifies a killing when there is no actual necessity to kill, but where under all the facts and circumstances a reasonable man would be excited by such fears as if it were necessary to kill the deceased to save his own life. And such an apparent necessity, if acted on in good faith, and not in a spirit of revenge, is always justifiable. So the two principles there are but means which converge to the same end of justification. Code § 26-1014 applies to a homicide where the principle of law of mutual combat is involved. It reads: "If a person shall kill another in his defense, it must appear that the danger was so urgent and pressing at the time of the killing, that, in order so save his own life, the killing of the other was absolutely necessary; and it must appear, also, that the person killed was the assailant, or that the slayer had really and in good faith endeavored to decline any further struggle before the mortal blow was given." The only occasion in which this section is ever applicable in the trial of a homicide is where both parties mutually intend to fight and generally with deadly weapons. For the time being and before we discuss the principles of mutual combat later on in this opinion, we will assume that the evidence sustains the principle of law applicable to mutual combat. The Code, § 26-1014, as we interpret it, simply provides that, where the principle of law of mutual combat is involved, neither of the parties engaged therein is justified in taking the life of the other unless two things appear: (1) the danger must be so urgent and pressing at the time of the killing that the one killing had to do so in order to save his own life; and (2) in conjunction with the killing it must appear also that the person killed was the assailant; or, in conjunction with the killing, that the slayer had really and in good faith "endeavored to decline any further struggle before the mortal blow was given." In reading the whole charge of the court in connection with the excerpts set out above, the charge is not subject to the attack made upon it. The taking of human life under the principles of law as set out in the Code, § 26-1014, is never justifiable unless those two things appear from the evidence. If those two things do not appear, the killing is voluntary manslaughter. We think that the court quite clearly made this appear to the jury, and they could not have been, as we see it, confused. These grounds require no reversal, as we see it, under the record of this case.
3. Special ground 2 assigns error for the reason that it is contended that the evidence does not sustain the charge of the court on the principle of the law of mutual combat, and therefore it was error for the court to charge the principles of the Code, § 26-1014, with reference to mutual combat and as the principles of mutual combat apply to voluntary manslaughter. It is further contended that the court in charging the principles of mutual combat expressed an opinion that the evidence was to the effect that there was a mutual combat. This contention is based on the following excerpt from the charge: "When two persons engage in mutual combat, or when mutual combat arises, where there is a mutual intent to fight, each to fight the other, if, while engaged in mutual combat, to justify the killing. . ." We do not think that this isolated excerpt expresses any opinion at all, in view of the whole charge of the court, that the evidence was sufficient to establish that there was a mutual combat. Let us then inquire as to whether the court was authorized to charge the principle of the law of mutual combat, in view of the defendant's statement. We think that it shows that the court was authorized to charge on that principle. While it would not have been error not to have done so, it was not error to do so. There are many decisions to the effect that, if it is doubtful, the court should charge it and leave it to the jury. The defendant said in this connection, after relating a difficulty between the deceased and himself: "He said, 'Don't cuss me for a son-of-a-bitch', and he backed back and started over from behind the car and struck me, and I said, 'Don't strike me,' and when he struck me I staggered back. He hit my head and it glanced off and he backed back up to the car, and I picked the level up, and he put his hand in his pocket and said, 'God damn it, I'll kill you,' and I hit him and I wasn't trying to kill him." It will thus be seen from this statement of the defendant that the defendant and the deceased were engaged in a difficulty (and that they had been for some time, according to the record). The jury were thus authorized to find that the defendant with a level, a deadly weapon with which he killed the deceased, and the deceased circumstantially with a deadly weapon which he was attempting to pull out of his pocket, were agreed to fight to the finish with deadly weapons. If the deceased did not have a deadly weapon in his pocket, why did he say to the defendant that he would kill him? It is interesting to note also that from the record, aside from this defendant's statement, it was not absolutely necessary to take the life of the deceased under the principles of the Code, § 26-1014. And it does not appear from the record that the deceased was the assailant, but it does appear that the defendant was the assailant. And neither does it appear that the defendant had endeavored to decline any further difficulty. We therefore conclude that it is inescapable that mutual combat was involved under the defendant's statement, and the court did not err in instructing the jury to this effect.
4. The appellate courts of this State have many times had before them the issues presented under this record, and we have given considerable thought in the cases heretofore and in this case to the principles involved and discussed. But in connection therewith we would like to call attention to some of the recent decisions involving these issues, so that the bench and bar may readily have some of them at hand. In the beginning, let us say that, if there should be any error in a trial for murder in charging justification under the general section of the Code, § 26-1011, or justification under the Code, § 26-1012, or the principles of absolvement from murder under the mutual-combat doctrine of the Code, § 26-1014, such would not be reversible error where the verdict is voluntary manslaughter. This is true for the reason that a verdict of voluntary manslaughter is an acquittal of murder under either one of the above Code sections. Such errors, if there be any, if a verdict is returned for murder, might be urged. One of the most recent cases is that of Davis v. State, 76 Ga. App. 427 ( 46 S.E.2d 520). We particularly call attention to the citations beginning at the bottom of page 431, in division 2 of that opinion. There are many other cases to the same effect. We will not here cite them, but they will be found under our Code section with reference to mutual combat.
The court did not err in overruling the motion for new trial for any of the reasons assigned.
Judgment affirmed. MacIntyre, P. J., and Townsend, J., concur.