Opinion
29719.
DECIDED DECEMBER 4, 1942.
Voluntary manslaughter; from Warren superior court — Judge Perryman. May 4, 1942.
T. Reuben Burnside, W. Tom Veazey, for plaintiff in error.
J. Cecil Davis, solicitor-general, contra.
The evidence supported the verdict of voluntary manslaughter, and none of the special grounds of the motion for new trial discloses reversible error. The court did not err in overruling the motion.
DECIDED DECEMBER 4, 1942.
The defendant was indicted for murder and convicted of voluntary manslaughter. His motion for new trial was overruled and he excepted. The evidence showed that on Sunday afternoon, October 26, the defendant, Herbert Norris, and the deceased, Willie B. Harris, were visiting at the home of Jabo Lock, in Warren County, Georgia. During the afternoon Herbert Norris and Harris got into an argument over twenty cents, and as a result of the argument and resulting "rucus" the defendant left the home of Lock and went to his own home, a mile or so away, got his gun, returned to Lock's home, hiding his gun down by the side of his leg, and called Harris out of Lock's house. As Harris, in response to the defendant's call, came out of Lock's house he was shot by the defendant and fell some four or five steps from the door. Harris died immediately. After the shot the defendant immediately turned away and left the scene of the shooting. He was caught by the sheriff the next day in Jefferson County, Georgia. When arrested, the defendant stated to the sheriff that he had some trouble with the deceased about twenty cents on the afternoon of the shooting, that he and the deceased had a little "rucus," and that after the rucus he went home and got his gun and went back to the house where the fuss had taken place and where he had left the deceased. Upon the sheriff stating that the facts that the defendant had left, had gone to his home, had got his gun, and returned to find the man who was later shot, would be against him, the defendant told the sheriff that he carried his gun along to go rabbit hunting. When the sheriff asked him if he was going rabbit hunting on Sunday, the defendant stated that he intended going the next day.
The defendant, in his statement to the jury, said in part, that when he was leaving Lock's house Harris tried to pick a fuss with him about some money; called him a vile epithet, "You black son of a bitch;" and threatened to cut him with his knife. That the defendant then went on back home, and when he got there he decided to go to Willie Hampton's house that night to "get his family to help my wife pick peas. I got home, thinking about after the boy had threatened to kill me, I don't know why, I just thought I would take up the gun and carry it on; it would enable me and Willie James to go hunting next morning before I went off to work; and I carried the gun on, had no intention to have any more trouble with the boy at all. When I went on back by Jabo's house, going to Willie James's house, the deceased came up kind of behind me and when I looked around he said: `You black son of a bitch, you got your gun.' I said, `Boy, I ain't got any gun at you. I don't want to have trouble with you. I told you when I left I didn't want to have any more trouble and nothing to do with you.' He reached out with his knife in this hand and he come close to my gun and knocked the gun off like that. I snatched the gun back, by having the gun in my hand and my hand down like this and when I snatched the gun, my hand on the trigger of the gun, the gun — by snatching it from him, trying to get the gun from him, the gun shot and killed him. I did not have any intention to kill him."
1. "The law of voluntary manslaughter may properly be given in charge to the jury on the trial of one indicted for murder, where, from the evidence or from the defendant's statement at the trial, there is anything deducible which would tend to show that he was guilty of voluntary manslaughter, or which would be sufficient to raise a doubt as to which of these grades of homicide was committed." Reeves v. State, 22 Ga. App. 628 ( 97 S.E. 115). Applying the above rule to the evidence the jury were authorized to find the defendant guilty of voluntary manslaughter.
2. Special ground 1: The court charged the jury as follows: "I charge you that the two sections of the Code which I have just read, that is, section 70 [Code of 1933, § 26-1011] which has reference to justifiable homicide, in self-defense or in defense of habitation, person or property against one who manifestly intends or endeavors by violence or surprise to commit a felony on either, and section 71 of the criminal Code [Code of 1933, § 26-1012] covering the principle of the shooting having occurred or the killing having occurred under the fears of a reasonable man, I charge you that these two sections which I have just read apply where the defendant himself is without fault; where he is assaulted or attacked without any fault on his part, and he simply acts in his own defense, and as to whether they apply in this case is altogether for your determination from the evidence and from the defendant's statement." To this instruction the plaintiff in error excepted on the ground that it instructed the jury that these two Code sections applied where the defendant was without fault, whereas the law does not require that the defendant be without fault. In addition to the above objection, the defendant contends that the excerpt is an incorrect statement of the law. The objections raised have been decided adversely to the contention of the defendant in Smith v. State, 51 Ga. App. 601 ( 181 S.E. 212).
3. Special ground 2: The evidence authorized the charge under Code, § 26-1014, and we think the jury were authorized to find that there was an intention to fight with deadly weapons, it being disclosed on the trial that one of the combatants had a knife and the other had a shotgun; and if the evidence authorized the charge on mutual combat the charge as given was not error under the ruling in Smith v. State, supra.
4. Special ground 3: There was no reversible error in the judge's charge for the reason complained of in this ground. Where the judge charged the law in reference to justification if the slayer acted under the fears of a reasonable man, in accordance with Code, § 26-1012, and also charged the law touching voluntary manslaughter and the reduction of the homicide from murder to manslaughter in accordance with § 26-1007, it furnishes no ground for reversal that he failed, in connection with the latter charge, to specifically instruct the jury as to what consideration might be given to threats and menaces in connection with the doctrine of reasonable fears. Futch v. State, 137 Ga. 75 ( 72 S.E. 911).
5. Ground 4: The defendant contended that voluntary manslaughter was not involved. Having decided in a previous division of this opinion that it was involved, there is no merit in this ground.
Judgment affirmed. Broyles, C. J., and Gardner, J., concur.