Maddox v. State , 58 Ga. App. 450 ( 1938 )

Broyles, C. J.

1. Where on the trial of one indicted for murder there was evidence which would have authorized the jury to find that the accused and the deceased, upon a sudden quarrel, mutually engaged in a mortal combat, the failure of the judge to give in charge to the jury the doctrine of “mutual combat” is “cause for a new trial, where the accused teas convicted of murder.” (Italics ours.) Waller v. State, 100 Ga. 320 (28 S. E. 77); Findley v. State, 125 Ga. 579 (3), 583 (54 S. E. 106) ; Hall v. State, 133 Ga. 177 (5) (65 S. E. 400). However, where (as in the instant ease) the accused was convicted of the lesser offense of voluntary manslaughter, and where the judge correctly charged generally on the subject of voluntary manslaughter and on the law of justifiable homicide, the failure to specifically charge on the subject of “mutual combat” is not cause for a new trial.

2. The evidence authorized the verdict, and the refusal to grant a new trial was not error.

Judgment affirmed.

MacIntyre and Guerry, JJ., concur.