Jordan v. State , 1910 Ga. LEXIS 571 ( 1910 )

Lumpkin, J.

1. On a trial for murder, the evidence authorized the jury to find that three men were stealing watermelons from a patch at night, and that one of them was shot by a person who was left by the owner to guard the property. The defendant’s statement as to the actual occurrence was in substance as follows: He received information that some men were hanging around the patch, with the apparent intent to steal melons. When he reached the patch, the men were in it. He asked what they were doing there, and they replied by asking him what was that to him. He said he had a great deal to do with it, and if they did not get out of there he would make them do so. They said' that if he did not get out from there they would make him do so. He said: “You will have to; I am here on business.” At that time they started toward him, and one of them picked up a watermelon; and as he stopped, the accused shot him. Held, that the statement, in connection with the evidence, was sufficient to require the court to instruct the jury, upon request, on the subject of the right of one lawfully in charge of property to protect it against robbery by intimidation, and the doctrine of reasonable fears in connection therewith; and a refusal to charge on that subject, on request, and charging in effect so as to exclude such theory from the jury, was erroneous. Penal Code, §§ 151, 153, 170; 2 Bish. Cr. L. §§ 1177, 1178; Clements v. State, 84 Ga. 660 (11 S. E. 505, 20 Am. St. R. 385) ; Long v. State, 12 Ga. 293, 320.

2. While the statement of the accused, in connection with the evidence, would authorize a charge on the subject of voluntary manslaughter, there was no request to charge on that subject.

Judgment reversed.

All the Justices concur, except Fish, O. J., dissenting.