Rembert v. State

It is not error to refuse a special written request to charge when the matter referred to therein is sufficiently covered by the general charge. See Burkhalter v. Roach, 150 Ga. 98 (102 S.E. 832); Chapman v. State, 28 Ga. App. 107 (1) (110 S.E. 332).

DECIDED DECEMBER 5, 1947. Amos Rembert was indicted for the murder of Jack Douglas and was convicted of voluntary manslaughter. From the evidence produced on the trial the jury were authorized to find facts as follows: Several negroes had gone to the home of Jack Douglas, the deceased, where they had spent some time in drinking, gambling, and general entertainment. After some of the crowd had disposed of all their money, the defendant decided to leave the home of the deceased, left with C. D. Wright and Arzie Jackson, and got as far as the yard when he was called back by the deceased. Some words were passed between the two. The evidence disclosed that the argument was over the payment for some liquor that Douglas (the deceased) claimed to have sold to Rembert, the defendant. The argument reached the stage where both parties began to use curse words. At this point the deceased started into the house and as he went said, "I'll bet, God-damit, I'll make you pay me. I'll kill you." This was said in a loud voice and heard by the defendant and several witnesses. The deceased then went to the fireplace in one room of his home and got an iron fire-poker, and with this in his hand returned to the porch where the defendant was standing and hit him over the head with the iron fire-poker. As the deceased drew back to hit the defendant a second lick, the defendant cut the deceased near the heart with a knife which he had in a scabbard. There is evidence that the defendant drew a long knife before the deceased got the poker. The defendant then left the home of the deceased and went to the home of Mr. John Reddich, who called the sheriff. He filed a motion for new trial on the general grounds and amended this motion to set out two special grounds as follows: Special ground 1 assigns error because the court refused to charge his special written request that "mutual combat exists where there is a fight and both parties are willing to fight." Special ground 2 assigns error upon the failure of the court to charge the defendant's special written request that "Under our law, one free from fault, may, without retreating, take human life and be justifiable, if the circumstances are sufficient to excite the fears of a reasonable man that a felonious assault is about to be made upon him, and the slayer who is free from blame, acts under the influence of such fears, with the bona fide purpose of preventing the felony from being committed upon him."

The motion for new trial as amended was overruled, and this judgment is assigned as error. Relating to the assignment of error in ground 1 of the amended motion for new trial, the judge in his general charge fully covered the law on mutual combat and voluntary manslaughter. On this subject he charged as followed: "I charge you further that if you believe that at or about the time of the alleged homicide that a mutual altercation existed between the defendant and the deceased, and that such altercation engendered in the defendant's mind that sudden, violent impulse of passion supposed to be irresistible, and the defendant acted thereunder in good faith and cut and slew the deceased, he would not be guilty of murder, but would be guilty of voluntary manslaughter. That is for you to say. I charge you further that, if you believe that at or about the time of the alleged homicide, a mutual combat, mutual fight was taking place, pending between the defendant and the deceased, and the defendant slew the deceased in mutual combat, he would not be guilty of murder but would be guilty of voluntary manslaughter." See, in this connection, Lawrence v. State, 143 Ga. 264 (84 S.E. 582).

Relating to the assignment of error contained in special ground 2, the judge in his general charge fully covered the law of justifiable homicide and self-defense. On this subject he charged as follows: "Justifiable homicide is the killing of a human being by commandment of the law, in the execution of public justice by permission of the law in the advance of public justice, in self defense, or in defense of habitation, property or person against one who manifestly intends or endeavors by violence or surprise, to commit a felony, or either, or against any persons who manifestly intend and endeavor in a riotous or tumultuous manner to enter the habitation of another for the purpose of assaulting or offending personal violence to any person dwelling or being therein. That is the definition of justifiable homicide. But so far as the issues in this case are involved, the definition is simply this; it means killing a human being in self-defense or to prevent the party killed from committing a felony or perpetrating some serious personal violent injury on the person of the killer. . . The bare fear of any of these offenses, to prevent which the homicide is alleged to have been committed, shall not be sufficient to justify the killing. It must appear that the circumstances were sufficient to excite the fears of a reasonable man that his life was in danger or some serious personal violent injury inflicted upon him, and acting in good faith he slew the deceased. Killing in a spirit of anger or revenge would amount to murder. . . The defendant contends that on or about the time of the alleged homicide, that the decedent was the aggressor, that he made an unprovoked assault on him with a deadly weapon, that after having made the same, he struck him therewith over the head, and that he, the defendant acted under the fears of a reasonable man that his life was in danger, or a felony was about to be perpetrated upon him or some serious personal violence inflicted on him, and that he drew a knife and stabbed the decedent and killed him; says he did it in self-defense, to save his own life. If you believe that or have a reasonable doubt about it, this would amount to justification and it would be your duty to acquit the defendant."

It is not error to refuse a special written request to charge when the matter referred to therein is sufficiently severed in the general charge. See Burkhalter v. Roach, 150 Ga. 98 (102 S.E. 832); Chapman v. State, 28 Ga. App. 107 (1) (110 S.E. 332).

The jury being the sole judges of the evidence and the law as charged them by the court, and there being evidence to sustain the verdict of the jury, and the trial judge having overruled the defendant's motion for new trial, the general grounds are without merit, and this court will not interfere with the judgment of the trial court overruling the motion for new trial on the general grounds. See, in this connection, Rawls v. State, 116 Ga. 617 (42 S.E. 1008).

Judgment affirmed. MacIntyre, P. J., and Gardner, J.,concur.