DocketNumber: 23386
Citation Numbers: 48 Ga. App. 832
Judges: Broyles, Guerry, MacIntyre
Filed Date: 3/29/1934
Status: Precedential
Modified Date: 1/12/2023
The indictment in this case charges that W. A. Hanks murdered Clarence Pearson on September 15, 1932, in Rich'mond county, Georgia, “by shooting him in the body with a pistol.” The jury found the defendant guilty of voluntary manslaughter, his motion for a new trial was overruled, and he excepted.
A. P. Eldridge testified, in substance, that when he saw Pearson at about eight-thirty o’clock at night, about three minutes before he was killed, he was not armed, and '“did not seem to be vexed over anything.” T. J. Mitchell testified, in part, that when he saw
Doc Jones testified in part: “I did not hear Pearson or Hanks say anything. Pearson was in his shirt sleeves. . . When I looked around Mr. Pearson was trying to catch the gun to keep Mr.Hanks from shooting him. . . Mr. Pearson was going right to him to try to get the gun. They were tussling around, and there was some pretty fast work there.” Jim Shipes testified in part: “I . . saw Mr. Hanks (immediately after the shooting), and . . said: You are under arrest; give me your gun.’
S. M. Cobb, sworn for the defendant, testified in part: “I heard Hanks say: 'Don’t come on me,’and . . Hanks had his hand out, and Pearson pulled up his arm . . and run into him . . and clinched him, and then the pistol went to shooting. . . I could not be certain who was doing the shooting. . . Hanks never moved from his position under the light post, and Pearson came right on him. Pearson was a small fellow and Hanks was a big fellow. I did not see Pearson with anything, and I did not see any gun. When the pistol fired they clinched and the shooting began. . . I did not hear Hanks say: 'I shot him for family trouble.’” Charlie Sanders, sworn for the defendant, testified in part: “I was in Mr. Pearson’s place of business on Thursday or
After stating that he had been told that Pearson had threatened to kill him, and that Pearson had on a different occasion drawn a pistol on him, the defendant, in his statement to the jury, gave the following version of the occurrence: “I was standing on the corner waiting for a taxi to go home. . . He came across there and hit the sidewalk about thirty feet from me . . and put his hand this way and turned square to the right towards me. I told him to stop. . . He come right on up. I told him the second time to stop, and he carried his hand up this way and ran into me, and I got my gun and went to shooting at his legs. And he come right on and got the gun, and I knowed he was dangerous all the time. He come and got hold of the gun, and in the tussle he got killed, and I don’t know how it happened. I am sorry of the whole thing. I had nothing against him, and that is all I know about it.”
The foregoing statement of the evidence presents the substantial features of the case. There can be no question that the evidence supports the verdict, and we hold that the court did not err in overruling the general grortnds of the motion for a new trial.
The first special ground of the motion for a new trial complains of this excerpt from the charge of the court: '“Now, I give an entirely distinct piece of the law. The law says under what circumstances, and what must exist, when it will reduce a homicide from a higher offense to a lower offense; and if there is any lower offense in this case, it is voluntary manslaughter.” We do not think that the word “homicide,” as used in the charge, “implies criminality on the part of the defendant,” even though that word was
The next assignment of error under special ground 1 is that the charge given deprived the jury “of the right to say whether under the facts of this case the defendant might or might not be guilty of involuntary manslaughter.” We have stated the evidence rather fully in order to avoid repetition. We see nothing in it to warrant a charge upon the law of involuntary manslaughter. Indeed, we do not think that the defendant’s statement injects that theory into the case. The law as to when involuntary manslaughter is involved in a case, and when not, and when a charge should be given upon that offense, is so thoroughly covered by the Supreme Court in Carter v. State, 171 Ga. 406 (1), 410, and the numerous citations therein, that it appears to be unnecessary to do more than cite that case. In that case the court said: “There is nothing in the evidence to show that the killing in this case was unintentional. If this grade of homicide was involved, it arose from the statement of the defendant, to the effect that when he inflicted these numerous wounds on the person of the deceased he did not know what he was doing. Where there is nothing in the evidence to indicate that the killing was not intentional, and where no charge is requested on that subject, involuntary manslaughter is not an issue in the case, and no allusion should be made to it by the judge in charging the jury, even though the prisoner’s statement by indirection suggests such a theory.” We hold that the court did not err in failing to charge the law of involuntary manslaughter, or in substantially instructing them that that offense was not in the case.
In special ground 2 the following charge is complained of: “Now, in order to reduce a homicide from the higher grade to that lower grade, here is what the law says must exist before you can reduce it. In all cases of voluntary manslaughter there must be some actual assault upon the person killing, or if not that, an attempt by the person killed to commit a serious personal injury upon the person killing, or if not that, other equivalent circumstances to justify the excitement of passion and to exclude all idea of deliberation or malice, either express or implied.” The charge is not fairly sub
Special ground 3 avers that the trial judge committed error because he “failed to charge the jury the law of justifiable homicide, or to explain to the jury that there was such a thing as justifiable homicide.” The court charged the jury: “The prisoner enters in the trial of this case with the presumption of innocence in his favor, and that presumption remains with him throughout the trial until his guilt is established by the evidence beyond all reasonable doubt.” The first form of verdict given the jury by the court was: “We, the jury, find the defendant nof guilty.” Furthermore, the court instructed the jury under what circumstances the defendant would be “justifiable” if they found that he killed under the fears of a reasonable man, and apprised them of the fact that “a seeming necessity, when acted upon in good faith, is the equivalent of a real necessity;” instructed them that if they believed from the evidence that the defendant killed in self-defense they “should acquit him;” and further instructed the jury on the law of “misfortune or accident.” It thus appears that the court concretely applied the law of “justifiable homicide” to the facts of the case; and we hold that ground 3 discloses no cause for a new trial.
Special ground 4 avers that the trial judge committed error in charging the jury as follows: “The defenses set up here are three: one is self-defense; one is that of the fears of a reasonable man; and the other is accident.” The substance of the assignment of error in this ground is that the charge left the jury under the impression .that “only one of these defenses could be true,” and precluded the contentions made in the defendant’s statement that '“he shot at the legs of the deceased, and that he had a right to do so in order to protect himself, either by reason of an actual necessity or an apparent necessity, and that after the deceased and the defendant engaged in a struggle over the gun, and during this struggle the deceased was killed, and the defendant did not know that the actual killing occurred.” It is further urged that under the defendant’s statement,' his “contentions should have been submitted to the jurjq and the jury should have been allowed . to determine whether or not, if the gun was fired by the defendant
Special ground 5 complains of the following charge: “I charge you . . that if you believe from the evidence in the case that the defendant killed the deceased in his own self-defense, then you should acquit him, or if you believe that when he killed hifn he killed him under the fears of a reasonable man that some bodily harm was about to be done him amounting to a felony, and that he acted under the influence of those fears and not in a spirit of revenge, then he would be justified, and a seeming necessity, when acted upon in good faith, is the equivalent of a real necessity.” The assignment of error is: “This portion of the charge excepted to is error for the reason that it excludes from the minds of the jury the idea of the existence at the same time of both the elements of self-defense and the killing of a person by one who acts under the reasonable fears that either there was an actual necessity or an apparent necessity for the killing.” The charge appears to be favorable to the defendant, and is not, we think, subject to the criticism made on it.
Special ground 6 complains that the court erred in “failing to charge . . involuntary manslaughter in the commission of an unlawful act” — that the jury should have had the opportunity to determine “whether the killing was the result of an illegal shooting at the feet of another.” It appears from the. defendant’s statement that after he began shooting at Pearson’s legs, “he come right on and got the gun,” and that “in the tussle he got killed.” Doctor Irvine Phinizy testified: “The bullet in the hand and the one in the leg . . did not cause his death. He was killed by a bullet wound in the chest.” We hold that this ground is not meritorious.
Judgment affirmed.