Opinion
32108.
DECIDED OCTOBER 22, 1948.
Voluntary manslaughter; from Thomas Superior Court — Judge Lilly. April 22, 1948.
Titus Altman, for plaintiff in error.
J. B. Edwards, Solicitor-General, Roy Segler, contra.
1. The evidence supports the verdict.
2. The special grounds set forth in the amendment to the original motion show no legal reason for reversal.
DECIDED OCTOBER 22, 1948.
George Wilcox was tried on an indictment for murder and convicted of voluntary manslaughter. He filed his amended motion for a new trial, which was overruled. On this judgment he assigns error.
Substantially, the material evidence for the State showed: The defendant, with others, including John Henry McIntosh, the deceased, and his brother Elzie, whom we shall call the brother, engaged in a gaming transaction in the woods. This game wound up at the home of Cleve Johnson. From the evidence it appears that the deceased inquired of the defendant as to the amount the deceased owed the defendant. The deceased paid the defendant $6 and the defendant informed the deceased that the balance owing was $8. At this point the brother joined in the money question and threw a jar at the defendant. Thereupon, the defendant, the deceased, and the brother went outside the house. After getting outside, the brother got a piece of pecan wood with which to hit him and stated that he was going to hit the defendant. The piece of wood, properly used, was a deadly weapon. Then it was that the defendant went to his home, a short distance away. As the defendant went off to his house he said, "Wait until I come back." The defendant returned toward the scene where he had left the deceased and the brother. He returned with a rifle. When he returned, the brother, who had also left, had not returned, but the deceased was there. The deceased had an open knife in his hand, the blade of which, according to the evidence, was three to five inches long, and was a deadly weapon. The deceased met the defendant about half way between Cleve Johnson's house and where the defendant lived. Before they met, the deceased stated that he and his brother would kill everybody on that street and called for his brother to return. When they approached each other, about 12 or 15 feet away, the defendant halted and began backing up and stated that, if the deceased came on him with that knife, he would kill the deceased. The deceased continued to advance, and they did get together, both armed with a deadly weapon. One shot from the rifle was fired. The deceased died almost instantly. After the homicide, the sheriff had a conversation with the defendant. We quote a portion of this conversation. "I said to him, what did you want to go and shoot a man? Just talking in a general way. He said he wasn't going to let them run over him. He said they were down at Cleve Johnsons'. I said, you know that is not the right place to be with children. And he admitted that they had been down there gambling that night, all night. I asked him who was there. He said, he, Bill Hammond, Cleveland Johnson, and Peter Davis. Peter Davis was asleep, it seems. I don't believe he said he got broke, but left that impression. Then early Sunday morning John Henry McIntosh, Elzie McIntosh, and M. T. Richardson came in between daylight and sunup and they got in an argument over $3, and John Henry and Wilcox were arguing about the $3, and Elzie threw a bottle at him and they got in an argument about that. He said he went home and got his rifle and came back; said he wasn't going to let them run over him. He said he did shoot him. I said, `Why did you come back, don't you know you had made a mistake? If you all were arguing and fussing and they couldn't have caught you if they had wanted to, why did you come back to this place?' I'm pretty sure the words used were, `They were not going to run over me.'" While the evidence is in conflict in some minor particulars, there seems to be very little material conflict in the evidence for the State and the defendant's testimony, or as between the evidence for the State and the defendant's statement. We quote his statement: "Gentlemen of the jury, I want to say this to you: The trouble between me and this boy that got killed. He owed me, the Sunday before he got killed he owed me $14. He came up and gave me $6 and said, `How me and you stand now?' I said, `You owe me eight more,' and when I said that, his brother reached down and grabbed a jar and threw it and it hit one fellow and broke it all to pieces. Elzie jumped out and ran in the wood pile and got a piece of seasoned pecan wood. I said, `If you wait until I come back we'll settle it.' When I got about half way back on North Madison and Short Broad he was gone. I looked and saw John Henry coming right straight toward me. I didn't say anything until he got close enough, and I could see the knife in his hand. Then I said, `I don't want to hurt you — don't come down here. I don't want to have any trouble with you,' and he kept on coming at me with that knife. He got close enough and I backed up, I'm satisfied 10 or 15 feet, to the outside. I know if I waited another second I'd would have suffered from it. The gun fired as he had hold of the barrel of it. I pulled the gun to pull it out of his hand. I pulled him right over on me. He had the knife in his hand. I pushed his head out of my stomach. The brother was the cause of it. I wouldn't have shot him for nothing, himself, but his coming with a knife to kill me. I wouldn't come on a man with a gun with a knife unless I intended to kill him if I did get there. That is all I have to say." We have not endeavored to give the evidence in detail for the reason, as stated, that the defendant's testimony does not materially conflict, as applied to voluntary manslaughter, with that of the State.
1. Distinguished and eminent counsel, with much earnestness, insist that the evidence involved only the offense of murder, or justifiable homicide; that voluntary manslaughter is not involved under the evidence. With this contention we can not agree. The defendant, the deceased, and the brother had a previous difficulty over the winnings at a card game. The deceased and the defendant left the scene of this difficulty, the defendant going to his home a block or more away, and arming himself with a rifle. The defendant in his statement said, "I said if you wait until I come back we will settle it." The testimony for the State is that he said, "Wait until I come back." The defendant's statement to the sheriff was that he went to his own home, got his gun, and went back to where the previous difficulty occurred because he did not propose for them to run over him. It will thus be seen that the jury were authorized to find, under the evidence and the defendant's statement, that voluntary manslaughter, under the doctrine of mutual combat, was involved. If there had been a doubt, however slight, that manslaughter was involved, it would have been the duty of the court to submit voluntary manslaughter and let the jury say whether it was murder or manslaughter, and a failure to do so, had the jury convicted the defendant of murder, would have been reversible error. See, in this connection, Jackson v. State, 43 Ga. App. 468 ( 159 S.E. 293), and citations. See also Dorsey v. State, 73 Ga. App. 271, 275 ( 36 S.E.2d 178); Pittman v. State, 73 Ga. App. 405 ( 36 S.E.2d 866). There are many other decisions to the same effect. It therefore follows that under the evidence in this case the court committed no error in submitting the law applicable to voluntary manslaughter. The evidence would authorize a verdict of manslaughter under the theory of mutual combat or the theory of aroused passions. This brings us to a discussion of the special grounds in the amended motion.
2. Special ground 1 assigns error on the ground that the court committed reversible error in submitting to the jury voluntary manslaughter. We have discussed this question under the general grounds. This ground is not meritorious.
3. Special ground 2 assigns error because the court charged the jury that "words, threats, menaces, and contemptuous gestures would in no case be sufficient to free the person killing from the guilt and crime of murder." Error is assigned on this charge because: (a) it is unsupported by the evidence; (b) after having given this erroneous charge, the court should have, in connection therewith, charged that words, threats, or menaces might be sufficient to arouse a reasonable fear on the part of the accused that his life was in danger or that a felony was about to be committed upon him, and that if he shot under such fears, the homicide would be justified; (c) the jury should have been instructed that it was for them to say whether such words, menaces, or contemptuous gestures by the deceased were sufficient to arouse a fear on the part of the defendant that a felony was about to be committed upon him.
The charge complained of as to words, threats, and menaces was given by the court in connection with the proposition as to what would not reduce the offense from murder to manslaughter. Since the defendant was not convicted of murder, but was convicted of voluntary manslaughter, the principle urged is not applicable. Booker v. State, 183 Ga. 822 (4) ( 190 S.E. 356). It is also true that, where one is on trial for murder and convicted of voluntary manslaughter, the doctrine of reasonable fears had no application, since he has been acquitted of murder. Booker v. State, supra. See Hilliard v. State, 71 Ga. App. 528 (5) ( 31 S.E.2d 246).
4. Special ground 3 assigns error upon the charge of the court to the effect that, if the defendant killed the deceased when the deceased was about to commit a personal injury on the person of the defendant less than a felony, or there were other equivalent circumstances surrounding the killing to justify the excitement of passion or to exclude all idea of deliberation or malice, express or implied, the jury would be authorized to find the defendant guilty of voluntary manslaughter. This charge was a correct abstract principle of law, and was authorized under the evidence, and this ground is without merit.
5. Special ground 4 assigns error on the court's refusal to give the following written request: "An apparent necessity is equal to a real necessity." This is but the doctrine of reasonable fears, and has no application in a case of manslaughter, of which the defendant was convicted. He was acquitted of murder.
6. Special ground 5 also deals with reasonable fears and has no application to the questions before us.
The court did not err for any of the reasons assigned in the amended grounds to the original motion.
The court did not err in overruling the motion for a new trial for any of the reasons assigned.
Judgment affirmed. MacIntyre, P. J., and Townsend, J., concur.