Reed v. State , 195 Ga. 604 ( 1943 )

Under the evidence, the court did not err in omitting, without request, to charge to the jury the law of mutual combat as related to the law of voluntary manslaughter.

No. 14468. MARCH 11, 1943. Lent Reed was convicted of the murder of Minnie Thomas, and was sentenced to electrocution.

The evidence for the State, in substance, showed that some time after midnight on the night of July 19, 1942, Minnie Thomas, Wilbur Matthews, her brother, and Mose Maloy, her "boy friend," went to the rooming-house where the deceased resided. The house was situated at 571 Edgewood Avenue, Atlanta. It was a large two-story house. The accused resided on the first floor, the deceased on the second. Other people also resided there. Shortly after the arrival of the persons mentioned above they went to the room of the wife of accused, so that deceased could pay her rent. While deceased and the two men were sitting in the room talking to the wife of accused, the accused came in and called his wife out into the hall, where they held a conversation. After her return to the room the accused came back to the door and said to his wife: "I know there is some of your men in there." About fifteen minutes later he called his wife out of the room the second time, and upon her return she announced that her husband had a shotgun. There had been some heated conversation between the accused and the others, following his statement that the wife had some of her men in there. During this time the accused ordered the deceased to move out of the house, and the deceased refused, stating that she rented from his wife and not from him. The two men in the room, Wilbur Matthews and Mose Maloy, each denied to the accused any wrongful motive by their presence in the house. The deceased with the two men left the room of accused and went up stairs to her room. Following this the accused beat his wife with a three-legged smoking-stand. One of the other roomers in the house went out and got the daughter of the wife of the accused (the stepdaughter of accused) to come and intercede in an effort to have accused stop beating his wife. There were some words between accused and his stepdaughter. After the daughter left he beat his wife again. The deceased went back down stairs to get some change she had left at the time of paying her rent, leaving the two men, Mose Maloy and Wilbur Matthews, in her room up stairs. There were additional words, and the accused ran her out of the room. Following this the deceased made an effort to call the police, but was prevented from doing so, and returned to her room up stairs. A few minutes later the accused started up stairs; and hearing some one on the steps, the deceased went to her room door and looked out, and at this time accused shot her with a shotgun. She died within a few hours. Following the shooting of the deceased, the accused immediately returned down stairs and shot his wife, though she was not killed. After shooting his wife he went on the outside of the house and tried to get into position to shoot the two men, Mose Maloy and Wilbur Matthews, through the window. He then came back into the house, and upon his return to the house the two men went into the bathroom at the end of the hall and barricaded themselves. The accused broke down the door to the bathroom, and as the door fell both of the men jumped on accused, took the gun away from him, and cut him in several places.

The accused claimed that he and his wife had been separated for about a week; that excessive drinking on her part had caused him to leave home; that on the night of the homicide the deceased and the two men with her had come to the house; that they together with his wife were drinking; that his wife was drunk, and his effort to get her to stop drinking caused a fuss between him and the two men; that he left the house and returned about half an hour later, and upon his return found all of the persons still present. More words followed, and one of the men cut him. He then left the house and came back with a shotgun. Upon his return both men met him with knives, threatening to kill him, and as they ran up stairs he shot at one of them (this being the shot that killed the woman Minnie Thomas). He then claimed that following the shooting he went up stairs and was cut by the two men.

The foregoing is a summary of the contentions of the State and the accused. There was other testimony that will be discussed in connection with the special ground of the motion for new trial. The accused presents one special ground of motion for new trial. He claims that the court erred in not charging to the jury the law of mutual combat as related to the law of voluntary manslaughter. In support of this he specifies certain testimony which he claims required the court to charge this rule of law. The evidence relied upon was the testimony of Blanton Allen and his wife, Lena Allen. They testified that between twelve and one o'clock on the night of the homicide Mose Maloy came to their house. Blanton Allen's testimony was: "He [Mose Maloy] came to my house. He wanted a shotgun or a pistol, one or the two. I did not loan him a shotgun or a pistol at that time. He tried to get me to get him a shotgun or a pistol. I told him he didn't need nary one, and I tried to make him go home." Lena Allen's testimony was: "He [Mose Maloy] asked my husband for his pistol. . . He told me he wanted the pistol for protection. As to whether he said who he wanted the protection from — he said that he was in an argument, and that he wanted this gun where he was going back for protection, said, because he was looking for the fellow to come to [in?] with a gun or something. He said he had a good knife, but he figured that he couldn't get up on him and cut him with a knife. He did not say who the fellow was, but he told my husband that it was at 571. I did not hear him state who the fellow was that might come back with a gun. He didn't call his name."

The defense was that the accused did not intentionally kill Minnie Thomas, but she was shot when he was shooting at Mose Maloy; and the accused insists that the testimony above quoted was evidence that showed an intent to fight on the part of Mose Maloy, which entitled him under the law to a charge on the law of mutual combat as related to voluntary manslaughter. The court fully charged the law on the subject of the killing of a bystander as a result of a shot fired intentionally at another person; but did not charge the law of mutual combat as related to voluntary manslaughter, covering any mutual combat between Mose Maloy and accused. The exception therefore resolves itself into the question whether the evidence of Blanton Allen and Lena Allen, quoted above, was sufficient to require the court to charge upon this subject. The statement of accused relating facts that constituted mutual combat would not be sufficient to require the court so to charge, in the absence of a proper request therefor. See Ragland v. State, 111 Ga. 211 (36 S.E. 682);Hardin v. State, 107 Ga. 718 (33 S.E. 700); Willingham v. State, 169 Ga. 142 (149 S.E. 887); Powell v. State,179 Ga. 401 (176 S.E. 29).

The most favorable construction for the accused that could be placed upon this testimony is that Mose Maloy, after the beginning of the quarrel, left the place, and went to the house of the above witnesses and tried to borrow a gun or a pistol, and that he intended to return to the house where the trouble was going on. The only declaration made, as to why he wanted a gun or pistol, showed that he wanted it for the purpose of "protection." This would not be sufficient evidence to authorize the court to charge upon the subject of mutual combat. There was no evidence that this effort to procure a pistol or gun was ever communicated to the accused, nor was there anything to show that Mose Maloy's desire to arm himself was for any purpose other than for his own protection. See Cone v. State, 193 Ga. 420 (18 S.E.2d 850), and cit.

The evidence was sufficient to support the verdict, and the court did not err in overruling the motion for new trial.

Judgment affirmed. All the Justices concur.