Brown v. State , 228 Ga. 215 ( 1971 )

Felton, Justice,

dissenting. I dissent from the majority opinion, which grants a new trial in part because of the trial court’s refusal to charge on delusional insanity. A charge on delusional insanity was not authorized in the present case for two reasons: In the first place, the defendant testified that she shot the decedent accidentally, not because of a "continuing adulterous affair” (which existed either in fact or merely in the defendant’s mind). Hence, under her own testimony, it does not appear that she was laboring under a delusion (Goosby v. State, 153 Ga. 496 (112 SE 467) or, if she was, that the act itself was connected with the particular delusion under which she was laboring (Roberts v. State, 3 Ga. 310).

In the second place, as pointed out by the majority, in order for this defense to be available on a trial for murder, it must also appear "that the delusion was as to a fact which, if true, would justify the act. [Cases cited].” (Emphasis supplied). The majority opinion cites two Court of Appeals cases (Scroggs and Miller), then states that "[t]he gist of such holdings is that where a continuing adulterous affair exists, as opposed to mere past acts of misconduct, if a jury believes the killing was done to prevent future misconduct, an acquittal is authorized.” (Emphasis supplied). While this is technically a correct statement, as far as it goes, of the holdings on the subject, it is, nevertheless, a generalization which overlooks a crucial distinction and limitation recognized and imposed by the courts of this State, i.e., that the danger of any "future” adulterous act must be impending, imminent, immediate, urgent and pressing at the time of the killing for such killing to be justified. For some examples of the numerous cases holding to this effect see: Hill v. State, 64 Ga. 453, 466 (2); Cloud v. State, 81 Ga. 444 (7 SE 641); Mays v. State, 88 Ga. 399, 402 (14 SE 560); Jackson v. State, 91 Ga. 271 (1) (18 SE 298, 44 ASR 22); Coart v. State, 156 Ga. 536 (5) (119 SE 723); Broyles v. State, 25 Ga. App. 17 (102 SE 381); Green v. State, 52 Ga. App. 290 (4) (183 SE 204). Although the Court of Appeals, in Scroggs v. State, utilized the broad language "to prevent a planned act of sexual intercourse,” citing the Miller case, 9 Ga. App. 599, supra, this case was later distinguished by that court in Ogden v. State, 96 Ga. App. 508 (100 SE2d 588) and Lewis v. State, 109 Ga. App. 152, 153 (135 SE2d 492), so as to be aligned with the law as hereinabove set forth. Furthermore, it is not at all apparent that the Miller case is contrary to this principle, inasmuch as there was ample evidence in that case that the decedent had stated and evidenced to the defendant his intention of continuing his debauchery of defendant’s daughter, threatening defendant’s life if he interfered. This court, in Farmer v. State, 91 Ga. 720 (18 SE 987), approved the following instruction: "[W]here the defendant justifies the killing upon the ground that the deceased had attempted to debauch his wife, the doctrine that the danger must be imminent at the time of the killing does not apply. . .” To the extent that this case may not adhere to the law as established by both older and subsequent decisions, it should not be followed.

This court, in Jackson v. State, 91 Ga. 271 (1), supra, aptly expressed this principle in a case similar to the one at bar, to wit: "A husband is not justifiable in killing a man who he knows or believes to be his wife’s paramour when the latter is peaceably working at his daily labor in the field and the wife is at her home more than a mile distant. Under these circumstances there is no such urgent and pressing danger of a new act of adultery as to make the killing absolutely necessary in order to prevent it. It is only where there is such absolute necessity that a killing perpetrated to prevent adultery with the slayer’s wife is upon the same footing of reason and justice with cases of justifiable homicide expressly enumerated in the Code. The doctrine of reasonable fear as a defense does not apply to any case of homicide where the danger apprehended is not urgent and pressing, or apparently so, at the time of the killing.” In the case at bar there was no evidence of "such urgent and pressing danger of a new act of adultery as to make the killing absolutely necessary in order to prevent it.” There was no error in the court’s refusal to give the requested charges.

I am authorized to state that Justice Grice and Justice Undercofler concur in this dissent.