Starr v. State , 72 Ga. App. 814 ( 1945 )

1. The evidence supports the verdict.

2. Where there is no evidence of a forcible attack or invasion of the property of the defendant by the deceased, or of any attempt by the deceased in a riotous and tumultuous manner to enter the habitation of the defendant for the purpose of assaulting or offering personal violence to the defendant or any person dwelling or being therein, a failure to charge the law applicable to defense of habitation shows no error.

DECIDED SEPTEMBER 19, 1945. The defendant was indicted for murder, convicted of voluntary manslaughter, and given a sentence of one year. In due course a motion for a new trial was filed, which, as amended, was later overruled by the trial judge. On this judgment the defendant assigns error.

The defendant admitted killing the deceased, but claimed that a defense of her person and home justified the act.

Jewel Starr, a brother of the deceased, testified for the State that, he was not present at the time of the killing, but had just left the house and was near at the time he heard the shot; that "as to whether or not there had been any argument there between anybody before I — no sir, not that I know of, and if there had been any I would have heard it, yes sir. We were just sitting around there talking. . . Leila said to Fred (the deceased): ``Fred, you had better go, too, or I'll have to put you out,' and she was on the bed and she reached back and got the shotgun from the side of the bed. . . When I left, Fred did not have anything in his hands except a big handkerchief, and he was standing up by the graphonola, and he had not made any motions towards Leila at all, and he had no weapon that I saw. He had his handkerchief in his hands, . . As to whether or not Fred said anything else to Leila except to tell her she would not have to put him out, well, he said, ``You can't put me out, but I'll leave.' As to how far I had got away from the house before I heard the gun fire, well, I got out here to the corner of the house, . . I don't know what Fred did after I left the house, and I don't know what he was doing when he was shot."

Kenny Gibson, who went to the scene of the crime in the interest of a funeral home, testified for the State in part: "The body did not seem like it had been moved or touched before I got there. As to whether or not I looked around to see if I could find a weapon at all, well, I just found three matches in his pockets; his father said he thought he had some gas coupons, but I did not find any, and I did not find any knife or gun or any weapon at all, except the shotgun and it was standing up on the corner."

Lee Moore testified for the State that, he was not in the house at the time the deceased was killed; that the deceased started to play a record on the graphonola and the defendant's sister asked the deceased not to scratch it, and he told her he did not care anything about the record, and the defendant "said to the deceased, ``I'll put you out,' and he said, ``You don't have to,' and she jumped up off the foot of the bed and reached for the gun. . . She came around back of the bed. . . I went out. . . When I heard the gun fire I had just got out to the edge of the road. . . It did not take me a minute hardly to get out there." On cross-examination this same witness testified that he did not see a knife in the hands of the deceased.

Frank Russell, a deputy sheriff, testified for the State that, the defendant told him that she had shot Fred Starr; that she said he came in the house and was playing a record, and "I believe she said he was cursing and she told him to leave, and he would not leave and she got the shotgun and shot him. She did not say anything about him making any effort to hurt her other than just cursing."

Samuel Wilder testified for the State, in part, that he did not think that the deceased had been drinking at the time of his death.

Ovie Covington, a sister of the accused, and the only person present at the time of the killing, testified for the defendant, in part, that, she thought that the deceased was drinking at the time of the killing; that "Fred got his knife and started walking towards Leila (the defendant) and was cursing her. She had not done anything to him to cause him to do that except tell him to leave, and he refused to leave." On cross-examination the same witness testified that she did not know if the deceased had a hand-kerchief in his hand or not, "I did not see it if he did." Questions by the solicitor-general and answers by the witness elicited the information that the testimony on the trial was in conflict with what the witness had told the grand jury.

The defendant in her statement to the jury said that, the deceased came to her home cursing, other people came in, a dice game was started, the deceased started cursing again, the defendant asked the deceased to leave the house, and he refused. "I said, ``Fred, you will have to go and quit that cursing,' and he called me a big black bitch and ran his hand in his pocket and pulled out a knife or something and started towards me, and I shot him because I was scared of him and had asked him several times to go away from my house."

Buck Salmon testified for the defendant, in part, that he did not see a knife or weapon, except a hammer, when he went to the scene of the killing some little time after the crime, but before the officers arrived.

Several witnesses testified as to the general bad reputation of the deceased. 1. We have set out the testimony somewhat in detail. The verdict is supported by sufficient evidence to warrant the conviction. The jury were authorized to believe that there was no apparent reason for the defendant to slay the deceased in self-defense. The jury believed her guilty of taking the deceased's life under heat of passion, not in malice and not in self-defense. The trial judge acquiesced in the finding. There is sufficient evidence to warrant the conviction, and the refusal of a new trial on the general grounds was warranted.

2. Special ground 1 complains because the court erred in failing to give in his general charge the principle of law as to defense of habitation, and that such failure was hurtful and prejudicial to the cause of the defendant. The evidence, as given heretofore, did not disclose a forcible attack or invasion of the habitation of the defendant by the deceased. Able counsel for the defendant rely on the case of Powell v. State, 101 Ga. 9 (7) (29 S.E. 309. 65 Am. St. R. 277). The holding in that case is not applicable to the facts of the case at bar. The facts in the two cases are entirely different. In the case before us, defense of habitation was not involved. Here, there was no effort by the deceased "to enter the habitation of another for the purpose of assaulting or offering personal violence to any person dwelling or being therein." Powell v. State, supra, p. 25. The contention in the present case was decided adversely to the defendant in Taylor v. State, 138 Ga. 826 (76 S.E. 347), wherein it was held that, where no evidence was presented "of a forcible attack or invasion of the property of another by the person killed, or of any attempt by him in a riotous and tumultuous manner to enter the habitation of another for the purpose of assaulting or offering personal violence to any person dwelling or being therein," it is not error to omit to charge the law applicable to such theory. See also Stephens v. State,71 Ga. App. 417 (31 S.E.2d 217). It must be remembered that in the case at bar the deceased was a brother-in-law of the defendant, and that he sometimes came in during the night and slept in the house. Hence certainly there was no forcible attack or invasion of the property, nor any attempt by him in a riotous and tumultuous manner to enter the habitation of the defendant for the purpose of assaulting or offering personal violence to any person dwelling or being therein. This assignment is without merit.

The court did not err in overruling the motion for a new trial for any of the reasons assigned.

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