Morris v. State , 18 Ga. App. 759 ( 1916 )

Broyles, J.

The only headnote -which requires elaboration is the 7th. The defendant, while in his own house, shot and killed his father-in-law, who was standing a short distance outside. There had been a previous difficulty between the defendant and the deceased, a short time before the killing, and the deceased then abused and cursed the defendant and drove him into the defendant’s own house at the point of a gun, threatening to kill him. The deceased returned later to the home of the defendant, and was ordered by the latter to go away, and to “stop, stay out of my yard,” and the deceased replied, with an oath, that he had come to kill the defendant, and was going to kill him, and approached the house, and the defendant thereupon fired upon the, deceased and killed him. The deceased on this occasion had no weapon with him. The defendant stated that it was dark and he could no£; s'ee whether the deceased was armed, but believed that he was, and killed him because he feared that the deceased was about to take his (the defendant’s) life. Under such a state of facts it was for the jury to say whether or not there was either a real or apparent necessity to shoot, so as to make the homicide justifiable, or whether, although there was no such necessity, there was enough cause to justify the excitement of passion and reduce the homicide from murder to manslaughter. Johnson v. State, 12 Ga. App. 493 (77 S. E. 587). It was also for the jury to say whether the deceased attempted to commit a serious bodily injury upon the defendant, or whether there were equivalent circumstances to justify the excitement of passion in the breast of the defendant, and to exclude the idea of deliberation and malice, either express or implied. The question of “cooling time” is always for the jury; and under the particular facts of this case, and considering especially what had occurred at the previous difficulty shortly before the killing, the court did not err in instructing the jury upon the law of voluntary manslaughter, as some of the evidence, as well as some of the defendant’s statement to the jury, authorized them to find that the killing was done in the heat of passion, excited by the previous difficulty and by the persistence of the deceased in approaching the house of the defendant in defiance of his orders to the contrary (which was calculated to enrage and infuriate the defendant), and without any deliberation whatever, and without any real or apparent necessity for the killing.

The verdict was authorized by the evidence, and there was no error in refusing to grant a new trial. Judgment affirmed.