Hamby v. State , 71 Ga. App. 817 ( 1944 )

1. A general character for violence on the part of the deceased can not be established by proof of specific acts. Warrick v. State, 125 Ga. 133 (6) (53 S.E. 1027); Vernon v. State, 146 Ga. 709 (92 S.E. 76).

2. At the time evidence seeking to show the general character of the deceased for turbulence and violence was offered by the defendant and rejected by the court, no evidence had been introduced which showed that the deceased was the aggressor. Such rejection was not error; for "proof of the violent and turbulent character of the deceased is admissible only when it is shown prima facie that the deceased was the assailant, that the accused had been assailed, and that the defendant . . was honestly seeking to defend himself." Crawley v. State, 137 Ga. 777 (74 S.E. 537).

3. In a prosecution for murder, the testimony, "that, after the shooting, Mr. Hamby, the defendant, ran," authorized instruction on the law of flight, notwithstanding that the defendant was apprehended at his home the same night, and had not fled from the community where the crime was committed, since there can be no set or specific time necessary to constitute flight, and the distance that the defendant ran was immaterial.

4. "After a difficulty is once shown which would justify the charge of voluntary manslaughter, and it is shown that the killing of deceased by defendant a few hours thereafter was the culmination of the same difficulty, it would not, on account of intervening time, be erroneous for the court to charge on the subject of voluntary manslaughter. The sufficiency of the interval for cooling time was a question for the jury. It was, therefore, proper for the court to charge the law on the subject, and leave it to the jury to say, among other things, whether or not there was irresistible passion upon the part of the accused, and whether or not there was sufficient time for the voice of reason and humanity to be heard, and whether or not the defendant when the fatal shot was fired, was in fact laboring under the influence of that sudden, violent impulse of passion resulting from the difficulty, and supposed to be irresistible. What is said with reference to ``cooling time,' under the act of 1899 [Code, § 26-1007], is also reasonably referable to cooling circumstances, because the one necessarily involves the other. Cooling time, in the very nature of things, must vary and be governed by the circumstances in each case. Therefore it was right for the jury to consider all of the conduct of the defendant from the time of the first difficulty until the fatal rencounter, and construe that conduct in the light of all of the attendant circumstances and conditions, with a view of ascertaining what impulses, motives, or passions influenced him." Williams v. State, 125 Ga. 302, 304 (54 S.E. 108).

5. One phase of the evidence authorized a charge on justifiable homicide in defense of one's person based on the Code, §§ 26-1011, 26-1012. Under this theory of defense, the slayer's justification would be complete without showing that, in order to save his own life, the killing of the other was absolutely necessary. Another phase of the evidence authorized a charge on another theory of justifiable homicide based on § 26-1014, and applicable only in cases of mutual combat, wherein, in order for the slayer to claim self-defense, it must appear that the danger was so urgent and pressing at the time of the killing, that the killing of the deceased was absolutely necessary. This latter section does not qualify or limit the law of justifiable homicide as laid down in the two former sections. In the instant case it was proper to charge all of these sections, and it was done so as not to confuse the jury or make them all applicable to the same theory or state of facts.

6. The evidence authorized the verdict of voluntary manslaughter.

DECIDED OCTOBER 13, 1944. REHEARING DENIED DECEMBER 12, 1944. 1. The rulings announced in headnotes 1, 2, and 4 do not require elaboration.

2. The defendant excepted to a portion of the judge's charge wherein he gave proper instructions on the law of flight. Counsel for the defendant insist that there was no question of flight in the case, and no testimony to show that the defendant at the time intended to resort to flight. Able counsel are in error. By reference to the record, it will be ascertained that the question of flight is in the case, for Whitlow, a witness for the State, testified that when the defendant got through shooting, he ran by him; and Johnson, another witness for the State, testified that "after the shooting, Mr. Hamby [the defendant] ran." The evidence showed that the defendant ran from the scene of the shooting, which occurred on the premises of one Payne, and that he was arrested at his home about an hour later. The fact that he was apprehended at his home and that he had not fled from the community in which the crime was committed, and in which he lived, is wholly immaterial, in that there can be no set or specific time necessary to constitute flight; and the distance the accused ran before he was apprehended is also immaterial. Muse v. State,29 Ala. App. 271 (196 So. 148).

3. The instructions gave the defendant the benefit of two separate theories of defense. One theory which was supported by one phase of the evidence and the defendant's statement is that of justifiable homicide, and is based on the Code, §§ 26-1011, 26-1012. These two sections are applicable when the homicide is committed in good faith to prevent the perpetration of a felonious assault upon the person killing, such as is mentioned in § 26-1011, or under the fears of a reasonable man that such an offense would be perpetrated, unless the person who is actually or apparently about to commit it be slain; and, under the theory of these two code sections, the slayer's justification could be complete without showing that, in order to save his own life, the killing of the other was absolutely necessary. § 26-1012. This theory was fully and fairly charged by the judge. The other theory of justifiable homicide, which is supported by another phase of the evidence and the defendant's statement, is based on another kind of justifiable homicide such as is embodied in section 26-1014 of the Code. But this last-named section is applicable only in cases of mutual combat, and does not qualify or limit the law of justifiable homicide laid down in sections 26-1011 and 26-1012.

The court charged the jury that, "If you find from all the facts and circumstances of the case that there was a mutual intention to fight — that there was a mutual combat — then, in order for the defendant to claim self-defense, it must appear that the danger was so urgent and pressing at the time of the killing, [that] the killing of the deceased was absolutely necessary, and it must appear, if the person killed was the assailant, that the defendant endeavored to decline any further struggle before the mortal blow was given." To this instruction the defendant excepted on the ground that "this charge was not applicable to the evidence in this case, and ignored the defense in the case under the law of reasonable fears, and was error, and harmful and prejudicial to the defendant's case." This charge is based on section 26-1014 of the Code, which is as follows: "If a person shall kill another in his defense, it must appear that the danger was so urgent and pressing at the time of the killing, that, in order to save his own life, the killing of the other was absolutely necessary; and it must appear also, that the person killed was the assailant, or that the slayer had really and in good faith endeavored to decline any further struggle before the mortal blow was given." Thus under the theory of this kind of justification, which is embodied in section 26-1014 of the Code, the defense is not complete without showing that the killing was absolutely necessary in order to save the slayer's own life. From an examination of the entire charge it appears that the instructions as to these two separate branches of the law of justifiable homicide, which were authorized by the evidence, were not given so as to confuse the one with the other, or make them all applicable to the same theory or state of facts. Hence there was no such confusion of the two theories as was calculated to injure the defendant.Cooper v. State, 70 Ga. App. 691 (29 S.E.2d 430);Warrick v. State, 125 Ga. 133, 141 (supra).

4. The defendant contends that the verdict should have been for murder or an acquittal, and that the evidence did not authorize a verdict of voluntary manslaughter. "The law of voluntary manslaughter may properly be given in charge to the jury on the trial of one indicted for murder, where, from the evidence or from the defendant's statement at the trial, there is anything deducible which would tend to show that he was guilty of voluntary manslaughter, or which would be sufficient to raise a doubt as to which of these grades of homicide was committed."Green v. State, 52 Ga. App. 290, 297 (183 S.E. 204). Bearing in mind the rule that, "in determining whether the homicide was murder or manslaughter, it is the prerogative of the jury to believe certain parts only of the defendant's statement and to combine those parts with certain parts only of the evidence," we think that the verdict of voluntary manslaughter was authorized under the evidence and the defendant's statement, when certain parts of the evidence were combined with certain parts of the defendant's statement, and that the judge did not err in overruling the motion for a new trial. Gresham v.State, 70 Ga. App. 80, 83 (27 S.E.2d 463).

Judgment affirmed. Broyles, C. J., and Gardner, J., concur.