Ricketson v. State

Lumpkin, J.

1. Where, on the trial of one indicted for murder, the evidence as to admissions or inculpatory statements made by the defendant in regard to the homicide was to the effect that he said that the person killed was trying to cut him with a knife and he had to shoot in self-defense; and whe.re, in the statement made by the prisoner at the trial, he said that the deceased was trying to cut him with a knife, and to defend himself he drew his pistol and fired without pointing it at the deceased, but the ball took effect, it was error to charge, that, “if the killing is proven to the satisfaction of the jury, or if 'admitted by the defendant to have been done and with an instrument that is used in a manner likely to produce death, then malice is presumed.” Futch v. State, 90 Ga. 472 (8), (16 S. E. 802); Perkins v. State, 124 Ga. 6 (52 S. E. 17); Green v. State, 124 Ga. 343 (52 S. E. 431); Mann v. State, 124 Ga. 760 (53 S. E. 324, 4 L. R. A. (N. S.) 934).

2. It has been held by this court that, in charging a jury in a murder case, it is not advisable for the presiding judge to say that, “to define malice in the language of the .Supreme Court, ‘malice may live in the gleam of the blade, or in the flash of the gun.”’ Leonard v. State, 133 Ga. 435 (66 S. E. 251).

3. Where one contention of the defendant was that the person slain went to the place of the homicide for the purpose of having a difficulty with him, it was neither hearsay nor irrelevant to allow the mother of the deceased to testify that she had asked her son to do something for her, the performance of which would require him to go to the place where the homicide occurred. Harper v. State, 129 Ga. 770 (59 S. E. 792); Patterson v. State, 134 Ga. 264 (67 S. E. 816).

4. In a case in which the facts render section 73 of the Penal Code applicable to one theory on which the defendant relies for justification, it is not error to give that section in charge. But if there be evidence of mutual combat which would authorize a finding that the homicide was voluntary manslaughter, the section referred to should not be so given as, in connection with its context, to exclude the latter theory.

5. The charge on the subject of communicated threats was not accurately expressed. But neither this nor the other grounds of the motion for new trial require detailed consideration.

Judgment reversed.

All the Justices concur.