Ellington v. State

1. It was not error to admit in evidence photographs of the body of the deceased over the objection that "the State has proved that the killing took place somewhere around 8 o'clock on the night of March 26th, and the proof is that the body was found the next morning." Weaver v. State, 199 Ga. 267 (3) (34 S.E.2d 163).

2. Assignments of error not expressly referred to in the brief of counsel for the plaintiff in error are treated as abandoned. Lowe v. State, 185 Ga. 113 (194 S.E. 527).

3. It was not erroneous to exclude from the evidence the record of the coroner's inquest, held over the body of the deceased, which was offered by the defendant as corroborating evidence only. See Clifton v. State, 187 Ga. 502 (7) (2 S.E.2d 102).

4. Even if it could be said that the evidence authorized a charge on the law of confessions, the failure to instruct the jury on that subject, in the absence of an appropriate written request to do so, was not error. Pierce v. State, 132 Ga. 27 (63 S.E. 792); Mika v. State, 196 Ga. 473 (5) (26 S.E.2d 616).

5. Where on the trial of one charged with murder the State introduced evidence of declarations of the defendant after the alleged killing, which tended to show that at the time of the homicide the deceased cursed the defendant and made an actual assault upon him by striking at him with an axe, when the defendant took the axe from the deceased and hit and killed him, the evidence was such as to entitle the defendant to have the law on the subject of voluntary manslaughter given in the charge to the jury.

No. 16387. OCTOBER 13, 1948. Hamp Ellington was indicted for the murder of Tommie Milton Hobbs. He was convicted with a recommendation of mercy and sentenced to life imprisonment. His motion for new trial, as amended, was overruled, and he excepted.

1-4. Headnotes 1-4 require no elaboration.

5. In the sixth special ground of the amended motion, it is insisted that the court erred in not charging the jury on the subject of voluntary manslaughter. On the trial the State introduced in evidence a signed statement, made by the defendant before investigating officers in which he stated: "We had gone just a short distance when Mr. Hobbs drove his car in a ditch . . running over a big rock in the ditch. I got under the car to dig the rock out and Mr. Hobbs cussed me out to everything, and looked over in the back part of the car for something. I thought he was looking for a pump and he took something out of the car, I thought was a pump until he hit at me with what he had in his hands, and I grabbed it. Both of us were drunk and didn't neither one of us know what we was doing, and I snatched what I thought was a pump out of his hands and hit him in the head. . . It was an axe I hit Mr. Hobbs with." The testimony of R. M. Moore, the sheriff, also offered by the State, was in substantial accord with the defendant's statement.

This evidence showed an actual assault upon the defendant, or an attempt by the deceased to commit a serious personal injury on him, sufficient to justify the excitement of passion, and to exclude all idea of deliberation or malice. It was such as would authorize the jury to find that the killing happened under such circumstances, which would necessarily reduce the crime from murder to voluntary manslaughter, and this being true, the jury should have had appropriate instructions on the subject of voluntary manslaughter, and the failure to give such a charge requires a new trial. Pierce v. State, 132 Ga. 27 (supra);Drane v. State, 147 Ga. 212 (93 S.E. 217); Booker v.State, 153 Ga. 117 (111 S.E. 418); Freeman v. State,158 Ga. 369 (123 S.E. 126); Burke v. State, 196 Ga. 702 (27 S.E.2d 313).

Since the case is remanded for another trial, no opinion is expressed as to the sufficiency of the evidence to authorize the verdict.

Judgment reversed. All the Justices concur, except Bell, J.,absent on account of illness.