Brooks v. State , 1920 Ga. LEXIS 314 ( 1920 )

Gilbert, J.

1. Neither the evidence nor the defendant’s statement authorized the court to give in charge to the jury the provisions of the Penal Code, § 75: “All other instances which stand upon the same footing of reason and justice as those enumerated shall be justifiable homicide.” Accordingly it was not error to refuse the written request so to instruct the jury. Compare Jackson v. State, 135 Ga. 684 (2-a), 685 (70 S. E. 245).

(a) The court submitted the issue of voluntary manslaughter under appropriate instructions relative to a killing as the result of a sudden, violent impulse of passion caused by the defendant coming upon his wife and another under circumstances indicative of infidelity and lascivious conduct.

2. No cause for reversal is shown by a refusal to charge § 76 of the Penal Code, which declares: “The homicide appearing to be justifiable, the person indicted shall, upon the trial, be fully acquitted and discharged.” The general charge informed the jury that the defendant could not be convicted unless proved guilty beyond a reasonable doubt, and fully instructed them as to the defense of justifiable homicide, and that the verdict might be for murder, voluntary manslaughter, or, if the jury had “ any doubt ” as to the guilt of the defendant, they should find him not guilty. Taylor v. State, 121 Ga. 348 (10), 356 (49 S. E. 303); Worley v. State, 136 Ga. 231 (71 S. E. 153).

3. There was no evidence to show that at the time of the homicide the decedent was the aggressor and was making an attack xtpon the accused; therefore the court did not err in refusing to admit evidence offered by the accused to show the character of the deceased for “ turbulence and violence.” The statement of the accused cannot lay the foundation for introducing evidence in his favor which would otherwise be inadmissible. Doyal v. State, 70 Ga. 130; Daniel v. State, 103 Ga. 202, 204 (29 S. E. 767) ; Nix v. State, 120 Ga. 162 (47 S. E. 516) ; Barnett v. State, 136 Ga. 65 (5) (70 S. E. 868); Crawley v. State, 137 Ga. 777 (2), 779 (74 S. E. 537) ; Medlin v. State 149 Ga. 23 (98 S. E. 551).

4. The remaining assignments of error fail to show cause for the grant of a new trial, and are not of such character Rs to require special mention. Judgment affirmed.

All the Justices concur. John B. Cooper and W. 0. Cooper Jr., for plaintiff in error. B. A. Denny, attorney-general, Charles H. Garrett, solicitor-general, and Graham Wright, contra.