Waters v. State , 146 Ga. 102 ( 1916 )

Atkinson, J.

1. The charge of the court complained of, relative to the prisoner’s statement, was substantially as embodied in the Penal Code, § 1036.

2. In a proper case, on the trial of one indicted for murder,. sections 70, 71, and 73 of the Penal Code may all be given in charge. But instructions as to separate branches of the law of justifiable homicide should ■ not be so given as to confuse, or be likely to confuse, the minds of the jury in reference to the defenses which may arise under those sections. The error in this ease of instructions calculated to confuse the defenses arising under those sections will require the grant of a new trial. Franklin v. State, ante, 40 (90 S. E. 480).

3. There was evidence that the deceased, being of a violent character and under the influence of whisky, was by permission in the home of the accused, and there, in the presence of the accused’s family and other guests, was cursing. The accused ordered him to desist, and, after refraining for a time, the deceased renewed his cursing; whereupon the accused “told him the next man cursed in there he was going to shoot him.” The deceased replied: “If I do curse any more, I will help you shoot some.” At the time of this statement the deceased had his hand in his “hip-pocket.” The accused went walking “toward the little room,” and the deceased started “toward the door” that led out of the house, saying that he was “going out.” When the deceased had one hand upon the bolt, in the act of unbolting the door which was closed, the accused reappeared from the room with his gun and shot the deceased in the left side from behind, inflicting the mortal wound. Held, that the evidence was not sufficient to require the court to give in charge to the jury the provisions of section 72 of the Penal Code, which refer to self-defense in instances of forcible attack and invasion of the property or habitation of another.

November 15, 1916.

Indictment for murder. Before Judge Kent. Laurens superior court. May 29, 1916.

Frederick Kea, for plaintiff in error. Clifford Walker, attorney-general, E. L. Stephens, solicitor-general, and Mark Bolding, contra.

Judgment reversed.

All the Justices concur.