Bivins v. State
| Decision Date | 04 April 1946 |
| Docket Number | 15421. |
| Citation | 38 S.E.2d 273,200 Ga. 729 |
| Parties | BIVINS v. STATE. |
| Court | Georgia Supreme Court |
Rehearing Denied May 10, 1946.
Syllabus by the Court.
1. The fears of the slayer that will justify a homicide must be the fears of a reasonable man, and the law, in case of homicide does not take into account the actual fears of the slayer but considers all the circumstances to determine whether they were sufficient to generate fears in a reasonable person.
2. There was nothing either in the evidence introduced by the State or in the defendant's statement to warrant an inference that there had been mutual combat between the parties, and that the defendant relied on justifiable homicide under the fears of a reasonable man, as defined in the Code, §§ 26-1011, 26-1012. It was therefore erroneous for the court to charge section 26-1014, which is applicable only to mutual combat.
3. The charge on justifiable homicide in defense of habitation was inapplicable to the evidence, but was not subject to any criticism made.
4. It is not error to fail to charge that the defendant's statement may be considered in connection with the conflicts in the evidence, and that the jury may believe the statement in preference to the testimony of any witness, where the court elsewhere in the charge appropriately instructed the jury that they might believe the defendant's statement in preference to the sworn testimony.
5. The court did not err, under the evidence in the present case, in charging the jury as follows: 'The law presumes every intentional homicide to be malicious until the contrary appears from circumstances of alleviation, of justification of mitigation or excuse; and the burden is on the slayer, whenever an intentional homicide has been proved, to make out such circumstances to the satisfaction of the jury, unless they appear from the evidence produced against him.'
6. It was not erroneous to charge the jury in the language complained of in special ground 6, as dealt with in the opinion.
7. It was not erroneous to instruct the jury that:
8. Where on the cross-examination of a witness it is shown that he has given previous contradictory testimony in connection with the same matter, it is proper to permit him to offer in explanation matters to rebut the discrediting effect of his previous testimony.
9. Since this case must go back for a new trial for reasons set forth in division 2, no ruling is made on the general grounds of the motion for new trial as to the sufficiency of the evidence to support the verdict.
Fleming Bivins was found guilty, with a recommendation of mercy, of the murder of Luke Warren by shooting him with a pistol. The defendant filed his motion for new trial on the general grounds, which motion, as amended, by several special grounds, was overruled by the trial court. The exception is to that judgment.
The evidence for the State was conflicting in many particulars, and the principal witness for the State, Henry Taylor, admitted that his testimony as given on the trial was contradictory to the testimony given by him at the coroner's inquest, and explained this variation by stating that immediately after the homicide the defendant and the defendant's wife, Louella Bivins, had persuaded him to verify the version of the homicide that they would insist upon, that is, that the deceased was advancing on the defendant with an ice pick, and that the defendant shot the deceased in self-defense; and that they had threatened his life if he did not give such account of the homicide. The evidence of Henry Taylor on the trial was to the effect: that on the night of the homicide he was at the home of Luke Warren, and Fleming Bivins was also there; that Luke Warren and Fleming Bivins were gambling; that the witness was not gambling because he had no money; that the trouble started when the defendant accused the deceased of 'turning him up' for selling liquor; that they played on for a few minutes, and the defendant 'broke' the deceased; that the defendant then went over to his home, which was in the building adjoining the house in which the deceased lived, and came back with his pistol; that the defendant told the deceased that he had come over to kill him because he had 'turned him up;' and the deceased pleaded with him not to kill him; that the defendant's wife encouraged her husband to kill the deceased, and the defendant commenced shooting at him and fired three shots; that the deceased did not move; and that the defendant walked within about three or four feet of him and shot him, and the deceased fell out of the door steps. Henry Taylor further testified; that after the homicide the defendant told him to come over to his house, and they went into the kitchen, and the defendant's wife got an ice pick and took it to the place where the deceased was lying, and pitched the ice pick over on the right hand side of the deceased; and that afterwards the three of them planned to tell the story to make the homicide appear to be in self-defense, and the defendant and his wife told the witness that, unless he 'stuck' to that story, they would kill him.
Mozell Divins, who lived in the other side of the house in which the deceased lived, testified that she was awakened by the quarreling between the defendant and the deceased, and heard the defendant leave the house; and that he later came back, and she looked out of her door and saw the defendant start to shoot the deceased, whereupon she hastily closed her door to avoid being shot.
There was evidence that the policeman who investigated the case found an ice pick under the feet of the deceased. The embalmer testified that he found a bullet wound in the body under the left arm and bullet wounds in the head of the deceased. The homicide occurred in Macon, Bibb County.
The defendant's counsel in cross-examination brought out the fact that several of the witnesses had testified at the coroner's inquest, and that their testimony on the trial was different from that given at the inquest.
The defendant made a statement in which he attacked the testimony of all the witnesses, and gave as his version of the homicide that he and the deceased were gambling, and he won all the money that the deceased had; that the deceased asked to borrow 50 cents from him, which he loaned the deceased, and that the deceased wanted another loan of 50 cents, but he refused it and started to go home, and the deceased started toward him and said, 'You ain't going off with my money tonight.' The defendant's further statement was as follows:
Grady Gillan and Thomas A. Jacobs, Jr., both of Macon, for plaintiff in error.
Chas. H. Garrett, Sol. Gen., of Macon, and Eugene Cook, Atty. Gen., and C. E. Gregory, Jr., Asst. Atty. Gen., for defendant in error.
HEAD, Justice (after stating the foregoing facts).
1. In the first special ground, the defendant assigns error on the following charge of the court:
The assignment of error is on the grounds, that the court should not have required the defendant's fears to be measured by the fears of a hypothetical 'reasonable man,' and because the court intimated that a criminal homicide had been committed and reasonable fears had not been aroused in the mind of the defendant.
This charge is in almost the identical language of the Code, § 26-1012, and would not be subject to either criticism offered. The fears of the slayer that will justify a homicide must be the fears of a reasonable man, and if the defendant is an unusually timid man, or lacking in courage, and committed the homicide under circumstances that would not generate fears in a hypothetical reasonable man, he would not be justified. This court has over a period of years decided various phases of this question. See Teal v. State, 22 Ga. 76, 68 Am.Dec. 482; Golden v. State, 25 Ga 527, 533; Frazier v. State, 112 Ga. 868, 869, 38 S.E. 349; Vincent v. State, 153 Ga. 278, 299, 112 S.E. 120. In Anderson v. State, 117 Ga. 255, 258, 43 S.E. 835, 836, the court said: 'The law, in cases of homicide, does not take into account the actual fears of the slayer, but considers all the circumstances with reference to a determination as to whether they were sufficient to excite...
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