Banks v. State, 26466

• Decision Date: 06 May 1971
• Docket Number: No. 26466,26466
• Citation: 227 Ga. 578,182 S.E.2d 106
• Parties: Jerry BANKS v. The STATE.
• Court: Georgia Supreme Court

Page 106

182 S.E.2d 106

227 Ga. 578

Jerry BANKS v. The STATE.

No. 26466.

Supreme Court of Georgia.

May 6, 1971.

Syllabus by the Court

1. The court erred in failing to charge the law as to voluntary manslaughter.

2. It was not error for the court to give the instructions complained of in the special grounds.

A. J. Welch, Jr., McDonough, for appellant.

Edward E. McGarity, Dist. Atty., McDonough, Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Executive Asst. Atty. Gen., Courtney Wilder Stanton and Mathew Robins, Asst. Attys. Gen., Atlanta, for appellee.

ALMAND, Chief Justice.

Under an indictment charging him with the killing of Robert Walker by shooting him with a pistol, Jerry Banks was found guilty on his trial and sentenced to life imprisonment. His amended motion for a new trial was overruled. His appeal is from the conviction and sentence. Error is enumerated on the overruling of his motion for a new trial on the general grounds and four special grounds.

1. The seventh ground of the motion for a new trial asserted that the court erred, even in the absence of a request, in failing to charge on the law as to voluntary manslaughter.

The defendant's defense was that he shot the deceased in defense of his brother, Ludie Banks, and in defense of his life.

The evidence was substantially as follows: Jerry Banks, and the deceased, Robert Lee Walker, attended a birthday party at Willie Alberts' home on State Route 155 in Henry County, Georgia, on June 6, 1970 (T-34). During the course of the evening, the deceased slapped the defendant appellant's brother's wife, Ozella Banks (T-28). The defendant appellant's brother, Ludie Banks, was notified of the slapping incident and went to the Alberts' home. The deceased had in his possession a shotgun, but the shotgun was taken from the deceased's possession prior to Ludie Banks' arrival (T-15, 40). Upon arriving at the Alberts' house, Ludie Banks first called for his brothers and then entered the house (T-30). When Ludie Banks entered the front part of the house, the deceased attacked him. After a short scuffle, the parties were separated by Willie Roy Dodson (T-23). The deceased remained in the house and Ludie Banks went to his car parked in the Alberts' driveway (T-23, 30).

'Another fight erupted between George Albert and Willie Albert (T-15). Each man had an opened knife drawn (T-8, 15, 16). During the scuffle one of the knives dropped to the floor, and the deceased picked up the knife and made his way out the door (T-15, 40). These events were described by the following testimony of Essie Albert. 'Well, after my husband had slapped George down and I happened to look back-whatever before they was arguing and I happened to look back and Robert Lee Walker had the shotgun and so, while I was talking to him, George called Willie Albert 'a gray-headed son-of-a-bitch' and he slapped him down. So, Robert turned from me and went there in front of where George was and picked up the knife and I caught him by the sleeve and said, 'Hon, don't go out there,' and he said he just wanted to go out there and get something straightened out.' (T-15) The deceased left the house with an opened knife in his hand (T-16, 18, 30) and proceeded to Ludie Banks' car which was about five or six feet from the porch of the Alberts' house (T-30, 34). The evidence further showed that the deceased approached Ludie Banks and placed his arms around Ludie Banks' shoulders (T-31, 36, 37) with an opened knife in his hand (T-37).

At this point the defendant appellant yelled to the deceased, 'Don't cut that boy' (T-31, 32, 37, 40). The evidence was uncontradicted that after the verbal warning, there were three shots fired by the defendant appellant (T-5, 25, 32, 33, 37, 38, 40, 41). The first shot was made right after the defendant appellant gave the verbal warning to the deceased not to cut his brother ...