Freeman v. State , 158 Ga. 369 ( 1924 )

Hines, J.

1. Tlie State introduced evidence of certain incriminatory statements alleged to have been made after the homicide by the defendant to the arresting officer, in effect as follows: .(1) That she and the deceased, who was her husband, were tussling over a gun, he having hold of the stock of the gun and she having hold of the barrel, and the gun went off; (2) that she and the deceased had a fuss, and he threatened to shoot her, and they got to tussling over the gun, and it went off accidentally; and (3) that the deceased told her he would shoot her, and grabbed his gun, and they got to tussling over the gun and it went off and killed him. Held: Upon proof by the State of the above statements of the defendant, the court erred in omitting to charge, without request, the provisions of law defining manslaughter and voluntary manslaughter, embraced in sections 64 and 65 of the Penal Code. Drane v. State, 147 Ga. 212 (93 S. E. 217); Booker v. State, 153 Ga. 117 (111 S. E. 418). It was for the jury to say whether, under the proof, they believed that the defendant and her husband had a fuss, that he threatened to kill her, that he grabbed his gun, that they tussled over it, and that it was discharged and killed the husband, and. if they believed such state of facts existed, and the wife intentionally shot and killed him while they were tussling over the gun, whether she was guilty of murder or of voluntary manslaughter. The case differs from that class of cases in which the evidence for the State demands a verdict of murder, and the evidence for the defendant, or his statement, demands a verdict of not guilty, as voluntary manslaughter is not involved under such circumstances. Robinson v. State, 109 Ga. 506 (34 S. E. 1017); Hunnicutt v. State, 114 Ga. 448 (40 S. E. 243); Clark v. State, 117 Ga. 254 (43 S. E. 853).

2. The defendant timely requested the court to instruct the jury “that if the defendant, Lula Ereeman, killed the deceased without any intention to do so, but in the commission of an unlawful act, she would be guilty of involuntary manslaughter in the commission of an unlawful act.” The court declined this request, and the principle embraced therein is not covered by the general charge. Besides the evidence of her statements set out in the preceding headnote the jury had before them the defendant’s statement in which she gave this version of the homicide: Her husband came to the door and said: “Eind me my gun,” and she said: “What for?” He said: “I am going to kill you,” and she said: “What?” and he said: “Yes, I am,” and then he slapped her, and she said: “Don’t slap me,” and he said: “I will kill you,” and he took up the gun and they tussled over it, and the gun fired. She did not kill him. She did not intend to kill him. She was trying to keep him from killing her. Meld:

(а) Where there is evidence sufficient to raise a doubt, however slight, upon the question whether the homicide was murder or manslaughter, voluntary or involuntary, it is the duty of the court to charge on all these grades of homicide. Wynne v. State, 56 Ga. 113; Jackson v. State, 76 Ga. 473 (3).

(б) Under the proof by the State of the statements alleged to have been made by the defendant, and under her statement to the jury on the trial, the court erred in not instructing the jury as requested. Boyd v. State, 136 Ga. 340 (2) (71 S. E. 416).

(c) The instant case differs from Robinson v. State, 124 Ga. 787 (53 S. E. 99), where the evidence for the State demanded a verdict of murder, and where the defendant introduced no evidence, but made a statement, which, if credible, established a homicide by misfortune or accident. We cannot say that the evidence, in view of the proved statements of the defendant made after the homicide, and her statement made at the trial, if both or either were credible, demanded a verdict of murder; nor can we say that these statements demanded a verdict of acquittal on the ground that the homicide was accidental.

(d) This case differs from Allen v. State, 134 Ga. 380 (67 S. E. 1038), in which the evidence presented only two phases of homicide, viz., that of murder or accidental homicide, and in which the judge constructed his charge according to the case as made by the evidence, and in which there was no request by the defendant for a charge upon the law of involuntary manslaughter.

(e) If there is anything to the contrary of what is ruled under paragraph (6) of this note in the second headnote in Drane v. State, supra, that decision was not by a full bench, and must yield to the older case of Boyd v. State, supra, in which the decision was by a full bench.

(7) An instruction which embraces the law embodied in section 40 of the Penal Code, and applicable to the defense that a homicide was one by misfortune or accident, does not cure the omission of the court to give in charge the law of involuntary manslaughter, when the latter grade of homicide is involved in a case.

3. The defendant complains that the court erred in refusing to give in charge to the jury, when timely requested so to do, section 70 of the Penal Code, defining justifiable homicide. An inspection of the charge discloses that the principles of self-defense, embraced in this section, were carefully and aptly stated to the jury; and for this reason this assignment of error is without merit.

4. The defendant excepts to the following charge to the jury: “Now the evidence in this ease is what is known as circumstantial. There is no evidence here of a person who swears directly that they saw the crime committed. The evidence, therefore, is purely circumstantial. Circumstantial evidence is proof offered for the purpose of establishing facts pointing to the guilt of the defendant. Now, in order to convict upon circumstantial evidence, the facts that are proven in the ease must not only point to the guilt of the defendant, but they must be facts that point so clearly to the guilt of the defendant that they cannot be explained upon any other reasonable hypothesis except that the defendant is guilty as charged in the indictment. It is for the jury to pass upon the facts and determine what facts are proven and what facts are shown beyond a reasonable doubt. You find out what facts are shown beyond a reasonable doubt, and then see whether or not those facts can be explained upon any other reasonable supposition or hypothesis except that the defendant is guilty. If they can be explained upon any other reasonable hypothesis or theory or supposition other than the defendant is guilty of the offense charged, then the facts proven would not be sufficient, and the evidence would not be sufficient to authorize a conviction. But, on the contrary, if the facts that are proven not only point to the guilt, but point so clearly to her guilt they cannot be explained upon any other theory except that the defendant is guilty of shooting intentionally William Freeman Jr., under circumstances which show murder-, if the facts proven show that, and point to that conclusion so clearly there is no escape from it by any reasonable hypothesis, then it would be your duty to convict her, notwithstanding the evidence is circumstantial.” The errors assigned on this charge are (1) that it assumed that a crime had been committed, and (2) that the record failed to show that the defendant shot her husband intentionally. Held: It is error for the court to assume or seem to assume that a transaction was a crime. Minor v. State, 58 Ga. 551 (3); Phillips v. State, 131 Ga. 426 (62 S. E. 239). For this reason this instruction was erroneous.

No. 4298. May 15, 1924.

5. The other errors of which the defendant complains in her motion for new trial are without merit.

6. As we grant a new trial, we express no opinion upon the evidence.

Judgment reversed.

All Ihe Justices concur. John B. Cooper and IT. 0. Cooper Jr., for plaintiff in error. George M. Napier, attorney-general, Charles H. Garrett, solicitor-general, and T. B. Gress, assistant attorney-general, contra.