Opinion
14585.
JULY 7, 1943.
Murder. Before Judge Byars. Spalding superior court. April 7, 1943.
Leward Hightower and R. L. Addleton, for plaintiff in error.
T. Grady Head, attorney-general, F. E. Strickland, solicitor-general, and Maud Saunders, contra.
1. An essential ingredient of mutual combat is a mutual intention to fight; but where all of the evidence, including the defendant's statement, shows no agreement or mutual intention, that the defendant was armed with a loaded shotgun, and that the deceased was not armed, had made no threats, and was making no effort to feloniously assault the defendant, mutual combat was not involved; and the judge did not err in omitting to instruct the jury on this theory of voluntary manslaughter.
2. Where the verdict is supported by the evidence, the general grounds of the motion for new trial challenging the sufficiency of the evidence to warrant the verdict are without merit.
No. 14585. JULY 7, 1943.
STATEMENT OF FACTS BY DUCKWORTH, Justice.
Tommie Lee Mathis was indicted, tried, and convicted of the murder of Albert Nash, without recommendation, and was sentenced to be electrocuted. He excepted to the overruling of his motion for new trial consisting of the general grounds and one ground complaining because the court failed to instruct the jury on the law of voluntary manslaughter as based upon the theory of mutual combat. The State's evidence in substance showed that on or about December 10, 1942, the defendant and the deceased met at a lunch place operated by Reuben Stanley; that the defendant had three "ace highs," one of which he traded to Stanley for a fish sandwich, and set the others on a counter or table; that thereafter the defendant complained that some one had taken one of his "ace highs," and accused Albert Nash, who denied the accusation; that the defendant assaulted Nash, holding him in the collar with his right hand and having a switch-blade knife in his left, and saying that he would cut his "damn head off." Stanley thereupon ordered them out of his place of business, and they went out, the defendant holding Nash in the collar and threatening to kill him. At the suggestion of Bennie Roy Ector the defendant turned loose the deceased, and then both went to their homes which were near by. Susie Nash, wife of Albert Nash, testified that when he arrived at home she requested him to go with her to the lunch-room to get a sandwich. Upon arriving at the lunch-stand Nash stood on the outside, and shortly the defendant, while approaching the stand with a shotgun, discharged the gun once and then proceeded toward the lunch-stand where Nash was standing. Nash advanced toward the defendant, with his hands up, and said, "Tommie Lee, don't shoot me. Me and you are good friends." The defendant then shot Nash with the gun, and he fell to the ground and died. Nash had no weapon of any kind. Some of the evidence showed that while standing by the lunch place Nash had his hands in his pockets; and his wife testified that she asked him to run when the defendant was approaching with his gun, and he refused.
The defendant made a statement which agreed with the State's evidence as to the first meeting at the lunch-stand, except that he stated that Nash picked up a stool and manifested an intention to strike him with it, that Bennie Roy Ector made a statement or threat against the defendant after he and Nash went into the yard; whereupon the defendant ran and went home. He stated that he obtained his gun at his home and was going back to the lunch-stand to get a pair of pants that he had previously left there; that on his way he accidentally discharged the gun, then reloaded it, and as he was approaching he heard the wife of Nash say, "Albert, come on and let's go home," and that Nash replied, "No, you see that boy with that gun? I don't give a damn, the black son of a bitch can't do nothing but shoot;" that Nash had something in his hand that looked like a razor, that he then started towards the defendant with his hands in his pockets; that the defendant backed and Nash continued, and the defendant shot him. The defendant then went in the lunch-stand and got his pants. He went behind "Miss Lizzie's" house. He saw the wife of Nash kneel by him. Nash still had his hands in his pockets, and some one told her not to touch him until the police came, and some one else said, "It is this woman's husband." Bennie Roy Ector told the policemen he would show them where the defendant went. The defendant just ran across the road where they would not see him. He was in the back yard at home when the officers went in, and he went in there. He stated, that Nash did not have his hands up, as testified by the State's witnesses; that Nash was cursing him, and had both hands in his pockets when he fell; and that his wife took his hands out of his pockets and got something out.
The State's witness, Garfield Ray, testified that Albert Nash had nothing in his hands, was doing nothing to the defendant, and was not trying to do anything to him at the time he shot Nash. Ray did not see the wife of Nash go to the body after he fell. He saw her leave the place. He knew Johnnie Ray, who is his uncle; he visited him in the jail where he and the defendant were together; he did not talk to the uncle about this case, but the uncle asked him to be as light on the defendant as he could, and he replied that he was going to tell the truth; and he did not tell his uncle and the defendant that Nash's wife went to the body of her husband after he fell, got something out of his pocket, and left with it, and then returned before the officers got there.
Johnnie Ray testified, that he was in jail charged with murder; that his nephew Garfield Ray told him and the defendant in the jail that the wife of the deceased took something off the deceased, but that he did not know what it was, and that she left and then came back just before the officers got there.
1. The homicide did not result from the first encounter, nor is there a scintilla of evidence to show that at that time the defendant and the deceased mutually agreed to "fetch their weapons and fight." Hence the decision in Gann v. State, 30 Ga. 67, is inapplicable here. The encounter appears from the evidence, which is uncontradicted even by the defendant's own statement, to have arisen by the defendant's charge or belief that the deceased had taken a bottle of his "ace high." There is no evidence that this accusation or belief was justified, but it appears that this encounter terminated without agreement, plan, or intention by the parties to return and renew the same. The defendant's statement makes no contention that he procured the shotgun and returned to the lunch-stand expecting or intending to see the deceased there and engage in further controversy with him. On the contrary, he stated that his sole object in returning to the lunch-stand was for the purpose of getting a pair of pants which he had left there. He offered no explanation why he carried his shotgun. But his counsel contends that the testimony of the State's witnesses, that they had trouble before the shooting took place, that they were both cursing, that both of them came back, that the wife of the deceased was trying to get him to go home, and that the deceased beat the defendant back to the lunch-stand and was waiting for him, or that it looked to the witness like he was waiting for him with his hands in his pockets, required an instruction on mutual combat. It is further contended that the deceased's statement to his wife that the defendant had a gun and could do nothing but shoot shows a mutual intent to fight. It is the law, as contended by the defendant's counsel, that there need not be mutual blows in order to constitute mutual combat; but when there exists the essential ingredient, to wit, an intention on the part of both parties to fight, mutual combat exists, although the first blow kills or disables one of the parties. Ray v. State, 15 Ga. 223; Tate v. State, 46 Ga. 148; Findley v. State, 125 Ga. 579 ( 54 S.E. 106); Bailey v. State, 148 Ga. 401 ( 96 S.E. 862); Daniels v. State, 157 Ga. 780 ( 122 S.E. 223). The essential ingredient, mutual intent, in order to constitute mutual combat, must be a willingness, a readiness, and an intention upon the part of both parties to fight. Reluctance, or fighting to repel an unprovoked attack, is self-defense and is authorized by the law, and should not be confused with mutual combat. An aggressor will not be allowed, under the law, to mitigate his crime on the theory of mutual combat when it appears that his victim had no desire to fight, and intended to fight only to the extent that a defense of his person against unprovoked attack was necessary. There is no evidence in this record, including the defendant's statement, that would authorize a charge of the law of mutual combat. The question raised by the motion for new trial is controlled adversely to the movant by the decisions in Mims v. State, 188 Ga. 702 ( 4 S.E.2d 831); Roberts v. State, 189 Ga. 36 ( 5 S.E.2d 340); Cone v. State, 193 Ga. 420 ( 18 S.E.2d 850). The testimony of Johnnie Ray as to what his nephew, a State's witness, told him was admissible, if at all, for impeachment purposes alone. It was otherwise hearsay and without probative value. Higgins v. Trentham, 186 Ga. 264 ( 197 S.E. 862); Richards v. State, 55 Ga. App. 184 ( 189 S.E. 682); Hodge v. American Mutual Liability Insurance Co., 57 Ga. App. 403 ( 195 S.E. 765); Rushin v. State, 63 Ga. App. 646 ( 11 S.E.2d 844).
2. The verdict was authorized by the evidence, and the general grounds of the motion for new trial are without merit.
Judgment affirmed. All the Justices concur.