Watson v. State , 66 Ga. App. 242 ( 1941 )

It is earnestly contended by the plaintiff in error that the decision of this court to the effect that the law as related to mutual combat does not involve the principle that deadly or dangerous weapons are usually or generally necessary is erroneous. We have examined the cases cited in the motion for rehearing, as follows: Ray v. State, 15 Ga. 223 (4, 5);Tate v. State, 46 Ga. 148, 158; Donalson v. State,40 Ga. App. 360 (4) (149 S.E. 429); Abernathy v. State,51 Ga. App. 452 (180 S.E.2d 753); Bailey v. State,148 Ga. 401 (96 S.E. 862); Ison v. State, 154 Ga. 408 (114 S.E. 351); Shafer v. State, 191 Ga. 722 (13 S.E.2d 798). A careful reading of the facts and the rulings in those cases fails to sustain the contention of the plaintiff in error. There are two penal homicides in this State, murder and manslaughter. Manslaughter is of two kinds, voluntary and involuntary. Murder, of course, involves malice, express or implied. Passing from this higher grade, we come to voluntary manslaughter. This grade is of two types, distinguished by the motivating facts which prompt the act rather than the ends to be obtained; the one being based on passion supposed to be irresistible and the other on the principle of mutual combat. Both involve the intention to take human life. Intention to kill must be present in both or the homicide would fall in the lower classification of involuntary manslaughter where intention to kill is not present but the killing is occasioned without such intention. Voluntary manslaughter, under the general law of irresistible passion, involves a broad field and allows the jury a wide range. Such passion may be aroused from a mutual fist fight, previous difficulty, and many other things which would move a person to take human life because of the passion. The intention to kill abides with the passion. The same intention is present under the principle of mutual combat. The weapons or means used to consummate this intention may vary; they need not always be deadly weapons per se; but the weapons, manner of use, and other circumstances often enter. Usually there would be no means of manifesting a mutual intention to kill in the absence of a deadly or dangerous weapon with which to effectuate the intention. In all of the cases cited dangerous or deadly weapons were involved, or to the parties of the rencounter apparently were involved. Of course it is well settled that to the principle of mutual combat as applied to voluntary manslaughter, it is not essential that both strike blows or shoot.

We think the correct rule is expressed in Ison v. State, supra, and in Barton v. State, 96 Ga. 435 (23 S.E. 827).

Rehearing denied. Broyles, C. J., and MacIntyre, J., concur.