Brown v. State, 23791
| Decision Date | 09 February 1967 |
| Docket Number | No. 23791,23791 |
| Parties | Northern BROWN, Jr. v. The STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. The evidence authorized the verdict, and it was not error to deny the motion for new trial on the general grounds.
2. There was no evidence which required a charge on voluntary manslaughter as related to mutual combat.
3. Code § 26-1014 applies only in cases of mutual combat, and it was error to charge this section in the present case, since mutual combat was not shown by the State's evidence or the appellant's statement.
4. The fears of a slayer that will justify a homicide must be the fears of a reasonable man, and it was error to charge that the danger 'must be so urgent and pressing at the time that he must decide the question with reference to his accountability to the law at the time, and by the exercise of the same mental and moral faculties which he employed to shoot.'
5. The charge on the presumption of malice by the use of a deadly weapon did not omit instructions in regard to circumstances of justification or mitigation.
6. Contentions made in connection with the assertion that the charge was 'argumentative and overlooked certain of the evidence' have been dealt with in Divisions 2 and 3 of the opinion.
7. It was not error to excuse those jurors, otherwise qualified to serve, who were conscientiously opposed to capital punishment.
8. The appellant's plea of former jeopardy was not submitted in writing, and was otherwise without merit.
9. There is no provision of our law for furnishing to the accused the abstract of evidence made at the committal hearing.
Northern Brown, Jr., was convicted of the murder of James Frank Thomas. The homicide occurred at the Veterans Club on East Gaines Street in Dublin. Randolph Walker, Jr., testified that he was working as bartender at the club on the date of the homicide. He gave an account of the shooting as follows: 'Well I saw Northern come in, I just had waited on Frank, and I just moved from in front of Frank and I saw Northern walk in the bar, and then I heard this first shot, I didn't see the gun right away, and I run round on the customers side of the bar and Northern had a gun, and when I got around there Frank was shot 2 or 3 times, I couldn't count during the scuffle, and everything, and I saw Frank Thomas had a gun and he shot once while I was round there.' The witness stated that he thought three shots were fired before the deceased fired, and that the deceased was facing the witness at the bar when the first shot was fired.
James H. Horne gave the following account of the homicide: There was evidence that the defendant was shot in the left leg, above the knee cap.
The statement of the defendant at the trial was as follows: 'December the 4th, I was sitting in my car about 30 miles from Dublin, and Frank Thomas walked up to my car and shot me three times. And he left me for dead, and they took me, brought me to the hospital, and I stayed in the hospital for about a month and a half, and all the while I was-when I come out of the hospital I got news that he was sorry that he didn't kill me, which he left me for dead down there that night, and they had Willie James Thomas to tell me, Andrew Bell to tell me, and Rosa Mae Sanders to tell me that he going out toting a gun gonna finish me off which
H. Dale Thompson, Dublin, for appellant.
W. W. Larsen, Jr., Sol. Gen., Dublin, Arthur K. Bolton, Atty. Gen., G. Ernest Tidwell, Executive Asst. Atty. Gen., Carter A. Setliff, Asst. Atty. Gen., Joel M. Feldman, Atlanta, for appellee.
1. The first assignment of error in the enumeration of errors is the denial of the motion for new trial, which was on the usual general grounds. The evidence authorized the verdict, and there is no merit in this assignment.
2. In Specification 2 of the enumeration of errors it is asserted that it was error not to charge on voluntary manslaughter. In Specification 7 error is assigned on the failure to charge voluntary manslaughter as related to mutual combat. In the brief of counsel for the appellant the argument in regard to Specification 2 deals with voluntary manslaughter as related to mutual combat, and we will consider these two assignments of error together.
In Johnson v. State, 173 Ga. 734, 742(2), 161 S.E. 590, 594, mutual combat was defined as follows:
In the present case there was evidence that both the appellant and the deceased were armed at the time of the homicide and that both were shot. There was no evidence of any quarrel, arousing anger, and exciting such passion as to exclude deliberation or malice. The State's evidence showed that the appellant came into the room where the deceased was sitting at a bar, with his back or side to the doorway through which the appellant entered, and the appellant shot the deceased two or three times before the deceased shot. Under this evidence the appellant was plainly guilty of murder.
In his statement the appellant asserted that: The deceased had shot him three times on a previous occasion, and subsequently had made threats to kill him. When the appellant went into the barroom, the deceased was looking over his shoulder at the appellant. The deceased reached into his pocket for his gun, and then whirled around and started shooting. Under this version of the homicide, the shooting by the appellant was in self defense, and justifiable.
There was no evidence tending to show mutual combat, and it was not error for the judge to fail to charge on voluntary manslaughter as related to mutual combat. Brannon v. State, 188 Ga. 15, 2 S.E.2d 654; Cone v. State, 193 Ga. 420, 426, 18 S.E.2d 850; Mathis v. State, 196 Ga. 288, 26 S.E.2d 606.
3. Assignments 8 and 9 in the enumeration of errors assert that the trial judge charged Code §§ 26-1011, 26-1012, and 26-1014 in such manner as to confuse the jury, and erred in failing to charge that § 26-1014 should be applied only in the event the jury should find from the evidence that the appellant and the deceased were engaged in mutual combat.
The judge did not charge the first part of Code § 26-1007, defining voluntary manslaughter, but charged the latter part of that section. He then charged the principle from Code § 26-1012, that 'a bare fear of these offenses to prevent which the homicide is alleged to have been committed would not be sufficient to...
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