Andrews v. State

• Citation: 67 S.E. 422,134 Ga. 71
• Parties: ANDREWS v. STATE.
• Decision Date: 18 February 1910
• Court: Supreme Court of Georgia

67 S.E. 422

134 Ga. 71

ANDREWS v. STATE.

Supreme Court of Georgia

February 18, 1910

Syllabus by the Court.

Where under the evidence in the trial of a criminal case, the law of voluntary manslaughter is clearly involved, it is the duty of the court to charge the law upon that subject; and he is not relieved of this duty by the mere fact that counsel for the accused in his argument to the jury insists that the law of voluntary manslaughter and of mutual combat is not involved in the case.

Error from Superior Court, Thomas County; Robt. G. Mitchell, Judge.

Henry Andrews was convicted of murder, and he brings error. Reversed.

S. A Roddenbery and Roscoe Luke, for plaintiff in error.

W. E Thomas, Sol. Gen., Fondren Mitchell, and John C. Hart, Atty Gen., for the State.

BECK J.

The defendant in this case was charged with the offense of murder. The homicide out of which this charge grew was the result of an altercation between the deceased, who was pitching in a game of baseball at the time the altercation arose, and the accused, who was the umpire in the game. A dispute arose between the two, when the deceased, Curtis Cason, charged Henry Andrews, the umpire, with unfairness in passing upon the question as to whether the balls delivered by the pitcher were "strikes" or "balls." The accused seemed to have been highly incensed at certain language applied to him by the deceased, and replied with offensive epithets. It is unnecessary to follow the course of the altercation, which finally resulted in the killing of Curtis Cason. Evidence was introduced by the state which tended to show that the homicide was entirely unprovoked, except by the language of Curtis Cason, in which the fairness of the umpire was challenged and his fitness for the position was questioned. According to the testimony of some of the defendant's witnesses, on the other hand, at the time of the homicide the deceased and the accused were engaged in mutual combat; and under the facts testified to by those witnesses, if credited by the jury, a verdict of voluntary manslaughter in the case would have been a proper finding. The court failed to charge the law upon the subject of mutual combat, and gave the jury no instructions upon the subject of voluntary manslaughter, and in the motion for a new trial error is assigned upon the court's failure to charge upon the subject of mutual combat and voluntary manslaughter.

Inasmuch as there was evidence from which the jury would have been authorized to find that mutual combat existed at the time of the killing, and that the crime, if any, did not involve a higher grade of homicide than voluntary manslaughter, the court erred in failing to give to the jury instructions upon the subject of voluntary manslaughter. It was his duty to charge upon that subject without a request. It appears in one of the grounds of the motion for a new trial that counsel for the defendant, in his argument to the jury at the time of the trial, said that he "did not insist on the law of mutual combat, but insisted that it was murder or nothing." And in another ground it appears that "defendant's counsel insisted that voluntary manslaughter was not involved" in the case. The court was not relieved of the duty of charging the law upon the issues clearly made under the evidence in the case, by the contention of defendant's counsel in his argument to the jury. In the case of Caesar v. State, 127 Ga. 710, 57 S.E. 66, it was held: "In the trial of one charged with the offense of murder, the failure of the judge to charge upon the law...