Opinion
33734.
DECIDED OCTOBER 25, 1951.
Manslaughter; from Washington Superior Court — Judge Humphrey. May 26, 1951.
Irwin L. Evans, T. A. Hutcheson, for plaintiff in error.
W. H. Lanier, Solicitor-General, Casey Thigpen, J. D. Godfrey, contra.
1, 2. There is ample evidence to sustain the verdict.
3. The court did not abuse its discretion in overruling the amended motion for a new trial.
DECIDED OCTOBER 25, 1951.
The defendant was convicted of voluntary manslaughter on an indictment charging him with murder by shooting and killing Will Harper (hereinafter called the deceased) with a shotgun. The defendant filed his motion for a new trial on the general grounds, and thereafter amended his motion by adding one special ground on alleged newly discovered evidence. The motion was overruled, and on this judgment error is assigned. The jury were authorized to find from the evidence and the defendant's statement, facts substantially as follows: On the night of the homicide the deceased had a party or gathering at his home. There were a number of attendants. As quite often occurs on such occasions, as the record here pictures, intoxicants are available and quarreling and fussing and shooting and death result. We find the defendant, around midnight, having some arguments in the house of the deceased, who was in bed. Upon hearing the difficulty between the defendant and a woman, Oretha Marshall, the deceased arose, went to where they were, and ordered them away. The defendant had a knife out, but after being ordered to do so, closed it and put it in his pocket. The deceased went in front of his house and assisted in "cranking" an automobile in which Oretha was carried away to a near neighbor's house. At this stage the defendant became very angry and remarked that he was going for his shotgun. A son of the deceased in returning to the home of the deceased in a car, observed the defendant lying in a ditch across the road from the house of the deceased. The son reported that the defendant had a shotgun with him, whereupon the deceased and his son and daughter went out towards where the defendant had the gun and inquired of the defendant if he had a gun. He denied having a gun and invited the parties to look for it. They struck matches and made a search for the gun around where the son had seen the defendant with the gun in the ditch. However, they did not find the gun. The searching party moved back towards the house, and the defendant remained in the darkness around the spot where the search was made for the gun. In a few minutes a shot was fired from a shotgun near where the defendant was seen with the gun in the ditch. The load from the shotgun struck the deceased in front, from the waist upward. He died from this wound shortly thereafter. Two shots were fired. The record does not reveal the interval of time between the shots. All that the record reveals as to this is from witnesses who testified concerning this point by clapping their hands to indicate the lapse of time between the shots. There was conflicting evidence as to whether both shots were fired from a shotgun or one from a shotgun and one from a rifle. There was conflicting evidence as to whether or not the deceased had any weapon at all. The sheriff was summoned. In the search he found, near where the defendant was seen with the gun in the ditch, a pocket knife which was the same pocket knife that the defendant had in his hand when the disturbance arose between him and Oretha. The sheriff located the defendant, at the defendant's home, in bed asleep. The sheriff found near the bed a single-barrel shotgun loaded, and inquired of the defendant concerning whether that was the gun with which the defendant shot the deceased. The defendant informed the sheriff that it was. The defendant also admitted to the sheriff the ownership of the knife in question.
The defendant in his statement contended that the deceased and his son and daughter came to where he was in the ditch and made a search for the gun which the defendant had in the ditch; that they failed to find it; that as the deceased went away, "a little ways," he shot at the defendant; that the defendant ran, fell, and crawled over his gun; that he picked up his gun, ran sideways, and shot at the deceased; that he did not know whether or not he hit the deceased. The defendant also contended that he stopped in the ditch by the road with his gun to govern his "mad passion." There is evidence from which it might be inferred that the deceased had no weapon at all, and that the defendant went to his home, obtained a shotgun, returned to the home of the deceased, and killed the deceased with malice, without justification or mitigation.
1. The jury would have been authorized, under the evidence in this case, to find the defendant guilty of murder, but that verdict was not demanded.
2. We come next to consider whether the evidence is sufficient to sustain the verdict which the jury returned of voluntary manslaughter. We think it is. While the evidence is conflicting in some respects, it is our opinion that, under the facts, the jury were authorized to return a verdict of voluntary manslaughter under the general principle that the defendant was actuated by a passion supposed to be irresistible, aroused on account of the difficulty between him and the deceased at the home of the deceased. We are also of the opinion that the evidence sustains a verdict of voluntary manslaughter on the principle involved in mutual combat. We see no benefit that would result in going into detail with reference to the application of the evidence to these two principles of law. They are too well established. We have no doubt at all that the evidence sustains the verdict of voluntary manslaughter, and perhaps the defendant was fortunate in being convicted of this lesser offense.
3. The only special ground is based on newly discovered evidence. Such motions are not favored. The evidence in this motion does not impress us that another trial based thereon would produce a different result. It is in the main cumulative and impeaching.
The court did not abuse its discretion in overruling this special ground.
Judgment affirmed. MacIntyre, P.J., and Townsend, J., concur.