Stephens v. State , 71 Ga. App. 417 ( 1944 )

1. Where, as here, the evidence and the defendant's statement warrant, it is not error to submit the question of voluntary manslaughter under the principle of passion aroused by the defendant committing or attempting to commit an assault less than a felony; nor where there are "other equivalent circumstances" to justify the excitement of passion and to exclude all idea of deliberation or malice, either expressed or implied.

2. (a) The provisions of the Code, § 26-1013, have no application to a visitor in a home.

(b) The provisions of § 26-1014, have no application in any case where neither the evidence nor the defendant's statement contains the elements necessary to constitute mutual combat.

(c) Without a written request, the court did not commit reversible error in failing to charge on a collateral issue.

3. The charge, under the facts of this case, in the absence of a written request for additional instructions, met the requirements of the law. The evidence sustains the verdict.

DECIDED JULY 15, 1944. The accused was tried for murder and convicted of voluntary manslaughter. His motion for a new trial was overruled, and on that judgment he assigns error. As to the evidence, the record shows substantially that the accused, together with his wife, entered the back seat of the automobile of Luke Buck at the request of the accused, for the purpose of going to the home of the accused. The deceased, Otha Copeland, was at the time also at the place where the accused was, and, without being expressly invited, and without protest from either Luke Buck or the accused, also entered the car, occupying the front seat with Luke Buck. Both the deceased and the accused were related to Buck. They drove about two miles to the home of the accused. Buck testified: "There wasn't any conversation or quarrel between these two men . . I didn't discover any trouble of any kind brewing." When they reached the home of the accused, the four of them got out of the car and went into the house. The mother-in-law of the accused was in the house. The five of them were sitting in a room engaged in a general conversation when Luke Buck left the room to attend a call of nature. Before leaving the room he did not hear any trouble between the two men. He stepped outside the house behind the kitchen. From his position he could hear talking. As to this he testified: "Well, when I was outside I discovered they were talking some; they were having some talk, but no louder than when I was in there. They had not been talking loud when I went out. They were just talking ordinary conversation at the time. I was out there something like — it might have been probably four or five minutes, something like that. When I had finished what I had gone out there for I come on back in the house. . . I just got back to the door and got back in the door — coming in the door. As to whether I went out the front door or the back door when I left the house, I was sitting over there like this, and there was a side door right here, and I went around out that way, and went around on the back — there was one on the back and one on the front — there was some houses around there and they could see me. I went back in at that same door that I had gone out. The way the door was made, the door where you come in to come back in the house here, you can look right out this other door, but you can't look at it straight, sorter like that. When I got back to this door they was standing up over there near to the door. That was not the door that I come to, the one you could look on out at. He [meaning the deceased] was standing by it; he was standing up with his hand in his pocket like that, one hand in his pocket. If I don't make no mistake it was the right hand that the dead man had in his pocket at the time. It looked like he had it in his side pocket from the looks, the way he looked, the side pocket of his trousers. That is all I could look you know; I was looking that way, and I went to look around the other way — the pistol was firing. I could tell whether Otha was trying to do anything as he was standing up there. He was standing still; he wasn't doing nothing. He was standing facing to Hamp Stephens at that time when I seed him. They were just about as far apart as the distance from me to you — I figure it was around about three steps, good steps, like that. As to what they were saying to one another, or whether, as to what either one of them was saying to the other — well you know, it was talking when I was coming on back, but I thought they were talking something; but if they were fussing I didn't hear it. You know, it was talking but I didn't hear it. I didn't hear them say nothing. I didn't hear nary one of them say nothing. When I got to the door when I was coming back, Hamp was not standing up when I got back to the door — when I got back to the door, Hamp, he was getting up. He was sitting down in a chair, and he was getting up from the chair when I got back to the door. I saw him with something in his hand when he was getting up. The pistol was shooting then, that is, when I looked around. When he was getting up he was shooting. The pistol shot. Hamp was shooting the pistol. As to whether he was shooting toward anybody, Otha was standing over there toward the door and he was shooting toward the door — he was shooting toward the door that Otha was standing in. He shot twice. . . When he first shot, the way it was when he raised up with the pistol, he was getting up with the pistol and, ``bim!' that way, and if he had hit him then, it looked like he would have hit him down in his legs. As to how long it was after that before another pistol was fired, it was just ``pop! pop!' like that (the witness popping his hand). When the second shot was fired I did not see which way the pistol was pointed. The reason I couldn't see which way it was pointed the second time was, because it scared me, and I whirled back in the door. When I seed he was shooting I whirled back in the door. When I left out, I know I didn't left them fussing, so it scared me when I come back, and the pistol fired. I was going back in the door. . . I did not at any time see Otha Copeland with any weapon of any kind in his hand, or on him. I haven't seen nary one. I didn't see nary one on him."

The doctor who examined the body of the deceased testified: "I found a wound in his left side above his hip bone, and the bullet had gone through the abdomen — through the arm first. I think it was the same bullet, and had gone into the abdomen and was lodged in the lower right abdomen just below the navel, the median line. The range of the bullet was kind of from the side posterior; what I mean by that is more to the back. It ranged to the front, went through the abdomen, and perforated some of the intestines. I did not remove the bullet." Luke Buck testified further that the deceased ran from the house, and that he could not find him. Some time later a witness discovered him about one hundred yards from the house of the accused, lying in a ditch by the side of the road, shot. There were to the right side of the deceased and somewhat under him a package of tobacco or cigarettes, and an unopened knife. These articles had the appearance of having dropped from his pocket when he fell, or while he was lying there. The deceased was removed to his home, where he later died from the wound.

When arrested by the sheriff, the accused, in response to a question from the sheriff as to why he had shot the deceased, made a statement freely and voluntarily as follows: "Hamp Stephens came out and I asked him if the man was dead and he said he didn't know. I asked him how many times he shot him and he says twice; and I says, ``why did you shoot him?' and he says, ``he was cursing and going on over my wife, and I couldn't get him out.' I can't remember all that he said but that is about the first statement he made."

The defendant introduced his wife in his behalf, who was permitted to testify without objection from the State. She testified: "When we got to my house all of us got out of the car and went in the house, and all of us sat down, and Otha Copeland sat down, and sat there, and after a while he got up and says: ``I don't give a God damn about nobody;' and Hamp asked him who was he talking to, and he says, ``I am talking to all of you, and I will kill all of you;' and Hamp told him, ``Well, get on out of my house;' and he wouldn't, and so I told him; and then he drawed the chair on me, and he says, ``I didn't quite finish you up the first time;' and Hamp says, ``Don't hit my wife with that chair;' then he put the chair down and started on Hamp with his knife, and he says, ``I will cut your God damn throat.' When he said he didn't finish me up the first time, he was talking about the time he hit me with a jug. One time he hit me on the head with a jug, and burst my head open, and I like to have died. That was in 1939 that he hit me with the jug. I ain't for sure. As to what he hit me about, he wanted to go with me, and I wouldn't let him, and he had that old grudge against me. As to whether he cut my head with a bottle there, yes, sir, when he hit me with that jug it cut a vein in two. When he told Hamp Stephens that he would cut his God damn throat, Otha Copeland he run his hand in his pocket, and got his knife and started on to Hamp. As to what Hamp did then, he was sitting side of the dresser and he just reached and got the pistol out of the drawer and shot. He never did get up." On cross-examination she testified in part as follows: "I remember when Luke got up and went out of the house, and I remember when he came back in. He came back in the house. . . The fuss started after Luke Buck got back in the house, and Luke heard it all. He got back in the house in time to hear all the fussing after it all started. Luke heard every bit of it. It didn't start until he got back in, and he heard every bit of it. The fuss started between me and Otha. Hamp got into it that day when he come there and started again, but he didn't have a thing to do with it when he hit me then. I was Hamp's wife at that other time."

The defendant made the following statement: "Well this boy come there in the car with this other fellow, and they sat down there a while on the chair like that, and he jumped up and says: ``God damn everybody; I don't give a God damn for nobody;' and I asked him to get out of the house and he wouldn't go, and I asked him again, and I says, ``Otha, go on out of the house now,' and he wouldn't go, and he grabbed up a chair and he says, ``I will kill all of you,' and he reached back and got a chair and made a position to hit my wife, and I says, ``don't you hit my wife with that chair,' and he says, ``I ain't quite finished her up yet,' and he run his hand in his pocket. He set the chair down, and coming on me, and opening up his knife and coming on me, and I had to do something or else let him kill me one, and then I shot. I shot twice, and when I shot, I went and called the sheriff to come and get me. That is all I want to say."

We have set forth a sufficiency of the evidence, and all of the defendant's statement, in order to enable us to discuss the contentions urged. 1. Special ground 1 of the motion for new trial assigns error because the State submitted to the jury the question of voluntary manslaughter as applied to killing under a heat of passion supposed to be irresistable. It is contended that under the evidence the only question was whether the defendant was guilty of murder or was justified. The jury were authorized to take a part of the evidence for the State, and a part of the evidence for the accused, and a part of his statement. SeeWilson v. State, 9 Ga. App. 297 (2) (70 S.E. 1125);Sikes v. State, 44 Ga. App. 746, 748 (162 S.E. 866). In this view in our opinion the record authorized the court to submit the question of voluntary manslaughter to the jury, since the jury were authorized to determine whether or not the deceased was about to commit an assault less than a felony upon the defendant. Then, too, in this connection, we might very appropriately add that in view of the attack which the deceased had made upon the wife of the accused previously in 1939, and in view of the conduct of the deceased on the occasion of the homicide, the court properly submitted to the jury whether under this view there were "other equivalent circumstances" which aroused the passion of the defendant, and if his passion was so aroused, and he shot in the heat of such passion, the jury in such instance would be authorized to consider, and under the evidence return a verdict for voluntary manslaughter. As to the latter principle, we find a very able exposition of the law inRumsey v. State, 126 Ga. 419 (2) (55 S.E. 167). The doctrine there discussed approaches in identicalness the law applicable here. Our attention is called by counsel for the defendant to the case of Rentfrow v. State, 123 Ga. 539 (2) (51 S.E. 596). The facts in that case are so different from the inferences which may be drawn from the facts of the instant case that there is no conflict there and here.

2. Error is assigned under special ground 2 because (a) the court failed to charge the provisions of the Code, § 26-1013. This question has been settled adversely to the contentions of the defendant in White v. State, 2 Ga. App. 412 (1 b) (58 S.E. 686), which reads as follows: "There was no error in not charging the jury the principle of law contained in the Penal Code, § 72 [26-1013]. This section refers only to homicides having their origin in a forcible attack and invasion of the property or habitation of another; and as there was no evidence tending to show that any attack or invasion of the habitation of the defendant was intended by the deceased, but that on the contrary he was a guest or visitor at defendant's residence before the beginning of the difficulty, a charge upon § 72 would have been unauthorized and erroneous." By reference to the evidence it will be found that the deceased in the instant case was a visitor, therefore the principles of this section have no application.

(b) It is further contended under this special ground that the court erred in failing to charge § 26-1014. This section has no application in any case which does not have the elements of mutual combat in it, under the facts. Wheeler v. State,112 Ga. 43 (2) (37 S.E. 126); Jordan v. State, 117 Ga. 405 (43 S.E. 747); Jones v. State, 172 Ga. 500 (3) (158 S.E. 44); Wingate v. State, 68 Ga. App. 265 (2) (22 S.E.2d 758). The State's case is not dependent upon mutual combat, nor does the evidence for the defendant nor his statement contain this defense.

(c) It is further contended that since the attack was made on the wife of the deceased the court should have instructed the jury that he had the same right to protect his wife as to protect himself. This contention is true as an abstract principle of law, but the evidence shows that if there had been any assault of any nature on the wife the deceased, for the time being at least, had abandoned that pursuit, and had directed his attention to the accused. The evidence for the accused showed, and in his statement he contended, that the deceased had put down the chair and had directed his attention to the accused with a knife, and was making an attack not on the wife but on the accused at the time of the mortal blow. This personal attack on the accused himself was the defense urged at the trial. This issue was clearly made before the jury, and they found against the contentions of the defendant. The defense of his wife, if in the case at all, was merely a collateral issue. See, in this connection, Johnson v. State, 188 Ga. 771 (7) (4 S.E.2d 639); Fudge v. State, 190 Ga. 340 (5) (9 S.E.2d 259).

3. As to the contention under the general grounds on the question of self-defense the court charged: "Now I will give you the rule as to justifiable homicide; justifiable homicide is the killing of a human being in self-defense or in defense of one's person against one who manifestly intends or endeavors, by violence or surprise, to commit a felony upon such person. A bare fear of any of those offenses to prevent which the homicide is alleged to have been committed shall not be sufficient to justify the killing. It must appear that the circumstances were sufficient to excite the fears of a reasonable man, and that the party killing actually acted under the influence of those fears and not in a spirit of revenge. The term felony as used in this connection means an offense for which the offender, on conviction, shall be liable to punishment by death or imprisonment in the penitentiary, and not otherwise. If the jury should believe that the defendant shot and killed the person named in the indictment, but that at the time of the killing the deceased was committing or attempting to commit a felonious assault upon the person of the defendant or that the circumstances were such as to excite the fears of a reasonable person that the defendant was attempting or endeavoring or about to commit a felonious assault upon the person of the defendant, and that the defendant shot and killed the person named in the indictment under those circumstances and not in a spirit of revenge, then and in that event the jury should acquit." Without a written request for further instructions this charge as applied to the evidence met the requirements of the law.

The evidence sustained the verdict, and the court did not err in the trial for any of the reasons assigned.

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