Pryer v. State

Lumpkin, J.

Pryer was indicted for murder and found guilty, with a recommendation that he be imprisoned for life. He moved for a new trial. The motion was overruled, and he -excepted. None of the grounds of the motion for a new trial present any reason for a reversal except that which complains of the charge confusing the doctrines of justifiable homicide, reasonable fears, and self-defense from danger to life arising during the progress of a fight or mutual combat wherein both parties have been at fault. In immediate connection with charges in relation to the first two defenses just referred to (Penal Code, §§170 and 71), the presiding judge gave in charge the third defense (Penal Code, §73) in such manner as apparently to qualify or limit the defenses set up in the preceding charges, and.without any explanation or statement to indicate that this last section referred to a different character of defense, or self-defense arising under other circumstances, and was not a mere limitation upon the defenses already referred to. While in a later part of the charge the judge stated, as a supposition, the existence or happening of certain facts, and referred to real or apparent danger of an urgent and pressing character as a defense, a careful examination of the whole charge fails to satisfy us that he corrected the confusion of defenses contained in the charge above considered, or made clear to the jury the different defenses, or the difference in circumstances under which section 73 of the Penal Code applies. The charge set out in the second headnote apparently limited the doctrine of reasonable fears, so as to restrict it to the necessity for killing “in order to save his own life/5 and to exclude this defense as to other offenses set out in section 70. We would suggest that it would avoid much confusion if, where it is proper to give in charge section 73 of the Penal Code, the presiding judge would give the jury some instruction as to cases in which it is applicable, instead of simply charging it immediately after sections 70 and 71, without any explanation.

Judgment reversed.

Fish, G. J. absent. The other Justices concur:*