Boatright v. State
| Decision Date | 21 June 1926 |
| Docket Number | 5349. |
| Citation | 134 S.E. 91,162 Ga. 378 |
| Parties | BOATRIGHT v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by Editorial Staff.
In murder prosecution, where state's evidence showed accused guilty of murder, and accused's statement and evidence showed homicide was justifiable, there being some evidence that accused and deceased both drew weapons, it was not error to charge law of mutual combat embraced in Pen. Code 1910, § 73.
In murder prosecution, evidence held to authorize charge that, if defendant caught the hand of deceased with which deceased was endeavoring to cut defendant with a knife and if defendant shot deceased under such circumstances, it must appear that to save his own life killing of deceased was necessary, and that deceased was the assailant, or defendant had endeavored to decline further struggle.
Where law of justifiable homicide to prevent commission of felony on person of slayer, as embraced in Pen. Code, 1910, §§ 70, 71, was involved, it was error to limit defense to justifiable homicide in case of mutual combat, as embraced in section 73.
Where law of justifiable homicide in case of mutual combat is involved, jury should be instructed that Pen. Code, 1910, § 73, is applicable only if jury find parties were engaged in mutual combat.
Error from Superior Court, Wilkes County; C.J. Perryman, Judge.
Robert Boatright was convicted of murder, with a recommendation, and he brings error. Reversed.
Charge on hypothesis that defendant killed deceased after catching hand with which deceased was endeavoring to cut him held authorized by evidence.
Robert Boatright was indicted for the murder of Bonnie E. Lunceford. The homicide occurred on August 29, 1925. He was convicted with a recommendation to mercy. He excepted to the refusal of a new trial. The state introduced the alleged written and oral dying declarations of the deceased. These statements were in substance as follows: The defendant, the deceased and Allene Lunceford, a sister of the deceased, were at a party at Joe Lunceford's. The people at this party had been promenading. They then began to play games. The deceased noticed that his sister was not among those playing games. He heard some one talking in an automobile at the edge of the yard. He walked out to the automobile. His sister and the defendant were sitting on the back seat of the car. As he walked up to the right side of the car, he stepped upon the running board. He said to his sister: The defendant said something which he did not remember. The deceased then said to the defendant: She made a move to get out, and he went to take his head out from under the top and step back off the running board. About that time he saw the defendant run his hand in his inside coat pocket. The defendant jerked out a pistol, and he threw up his hand. As he did this the defendant fired the first shot, hitting his hand. He kept firing. He thought the defendant shot three or four times. The defendant was right on him. Then he just turned and walked about eight or ten steps, and told them he was shot. He had a knife in his pocket. It was closed. He did not think about his knife at the time of the shooting.
Allene, the sister of deceased, who was in the automobile at the time deceased was killed, gave this account of it: She was at the party at Joe Lunceford's on the night of the homicide. Had the first prom with the defendant. He said, "let's sit in a car." We got in a Ford. Smelled whisky on his breath that night. Were out there about 20 minutes before the deceased approached the car. We saw him coming. The defendant said, "Yonder he comes." Did not see the deceased do anything. Noticed he was smoking a cigarette. He looked in a car before he got to where we were, and then approached our car. When the deceased got to the car he passed by enough to catch my eye. Then he stepped back, put his foot on the fender, his left hand on the car, and right hand on the back of the front seat. He said "Allene, don't you expect you better get out and come on and play with the rest of us; it don't look nice for you to be sitting out here when the rest are playing games." She did not say anything. The defendant said, "We are not ready to get out yet." The deceased said, "I don't care what you do, but she is going in the house." About that time she raised up to go, and the defendant started firing, and she fell back. The deceased did not cut the defendant. The deceased did not curse at Bob. She did not see the deceased lay his hand on him at all. Did not see the deceased have a knife in his hand. When she was in a car, about to leave, Nash Glaze came up. She thought he had been with the deceased. She asked Nash, "How is Bonnie?" Nash said "He will be all right in a little while." Nash said, "Allene, tell me how it happened." She replied, "He [meaning the deceased] was trying to cut him [meaning the defendant]." She knows the deceased was not trying to cut the defendant. She loved the defendant, and was trying to protect him. It was not true that the deceased was trying to cut the defendant. She did not see any knife. The deceased did not put either one of his hands on the defendant.
Other evidence introduced by the state tended to establish these facts: There were three wounds on the body of the deceased, and three in his left hand. There was a bullet in his chest to the left of the chest bone. About an inch and a half to the left of the chest bone there was another wound. There was a third wound in the left side, a little towards the back. There was a wound through the left middle finger of the defendant. There was a second wound at another point on his left hand, and one through the end of the thumb of the same hand. These wounds were made with bullets. The defendant was engaged to be married to Lois, an older sister of the deceased, on August 5, 1925. A number of love letters from the defendant to this sister ranged in date from June 7, 1925, to the night of the homicide. Allene, a younger sister of the deceased, was about 18. She had been going with the defendant about 4 years. They had set times to be married, and were to be married in October, 1925. On the night of December 18, 1924, Allene went to ride with the defendant in an automobile, leaving home about 10 o'clock. They returned about 12 o'clock. On December 18, 1924, a license was issued to the defendant to carry a pistol for a term of 3 years. This was the pistol with which the homicide was committed. Horace Lunceford, a brother of the deceased, and a deputy sheriff arrested the defendant. The sheriff testified that Horace Lunceford gave him the pistol of the defendant at the hospital on the night of the homicide, and that there were five empty shells in it at that time. Oliver Sales was 30 feet from the car when the shooting took place. He saw the deceased just as quick as he could turn around after the shooting stopped. The deceased came towards him with his arms folded across his breast, saying he was shot. After the first shot was fired until he saw the deceased was not over 15 seconds. He did not see a knife in his hand.
The evidence for the defendant was substantially as follows: On December 18, 1924, the deceased and his brothers Mart and Willie, his uncle Will Smith, and another person went to the home of the defendant at night. His mother had retired, and was asleep. The defendant came in and called her. She got up and dressed. She heard some cars coming. One came in the yard and stopped in front of the door. Some one in the yard said, "Bob, you come out of that house." The mother opened the door and walked out on the porch, when Mart walked up on the steps and said, "I will have you know that Allene is my mother's child as well as Bob is yours." He wanted to know what the defendant's intention was towards Allene. He told them that he intended to marry her. Mart said, "Bob, you know it is wrong to take Allene away from home." The defendant said, "Well I haven't harmed Allene no way, and I think as much of her as I do of my mother." Mart said he did not object to Bob's attention towards Allene.
Mart said something about marrying that night. He tried to get the mother and the boy to get in the car and go and see about it that night. She told him she was not well, that the defendant had done nothing wrong, and she would not force him to go that night. The deceased said he would accept Bob as a brother and treat him as a brother, and he wanted the defendant and Allene to be satisfied if they felt that way towards each other. He asked the defendant and his mother to go and talk it over or see about it that night with his people. The defendant said he would go the next day, and he told him to come. Mart said, "Mrs. Boatright, we will drop this thing right where it is," when the deceased sanctioned it. On said night of December 18, 1924, the Luncefords were looking for the defendant and Allene. That was about 10 o'clock at night. One Short told the defendant that the Luncefords were out looking for him.
In June or July, 1925, the defendant and Lois went to church. The deceased was there. He said to the defendant, "I will get you yet," and he took his sister by the arm and led her off. On Saturday night before the homicide, Allene Lunceford was at the home of one Callaway as the guest of his daughter. The defendant was there. Her father knocked at the door. Callaway went to the door and found the father of Allene there. He told him that he wanted Allene. Callaway said...
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