Buchanan v. State

• Decision Date: 15 July 1922
• Docket Number: 3170.
• Citation: 113 S.E. 87,153 Ga. 866
• Parties: BUCHANAN v. STATE.
• Court: Georgia Supreme Court

113 S.E. 87

153 Ga. 866

BUCHANAN v. STATE.

No. 3170.

Supreme Court of Georgia

July 15, 1922

Syllabus by the Court.

Where the law of mutual combat is essentially for consideration in the case, the charge of the court should submit it to the jury, though no written request therefor is preferred; and the failure to charge this law where it is involved under the evidence is error requiring the grant of a new trial.

If the law that a person shall not be found guilty of any crime or misdemeanor committed by misfortune or accident was pertinent in this case, it was because of the defendant's statement. No request in writing was made to charge that law and the court was not bound to give instructions based on a theory contained only in the defendant's statement, in the absence of a written request.

The failure upon the part of the court to charge section 73 of Penal Code 1910, which declares that, "if a person kill another in his defense, it must appear that the danger was so urgent and pressing at the time of the killing, that, in order to save his own life, the killing of the other was absolutely necessary; and it must appear, also, that the person killed was the assailant, or that the slayer had really and in good faith endeavored to decline any further struggle before the mortal blow was given," was not hurtful to the accused. While this section is applicable in cases of mutual combat, it was clearly not hurtful to the defendant to omit giving it as a part of the instructions in this case.

Error from Superior Court, Floyd County; Moses Wright, Judge.

Sam Buchanan, alias Son Bailey, was convicted of murder, and he brings error. Reversed.

Harris & Ennis and Porter & Mebane, all of Rome, for plaintiff in error.

E. S Taylor, Sol. Gen., of Summerville, Geo. M. Napier, Atty Gen., and Seward M. Smith, Asst. Atty. Gen., for the State.

BECK P.J.

Sam Buchanan, alias Son Bailey, was tried upon an indictment charging him with the murder of Charlie Walker. The jury trying the case returned a verdict of guilty, without a recommendation, and the accused was sentenced to be hanged. He made a motion for a new trial, which was overruled, and he excepted.

1. In one ground of the motion for new trial error is assigned upon the failure of the court to instruct the jury on the law of voluntary manslaughter, as based upon the theory of mutual combat or mutual intent to fight; the movant contending that, under the facts and evidence, a charge upon that subject was required. The court charged on the subject of voluntary manslaughter, but did not charge on the subject of mutual combat or mutual intent to fight. We are of the opinion that the failure to charge upon this subject was error. Several eyewitnesses testified in this case among them one Bell Cates. A part of her testimony was as follows:

"I know Son Bailey, and knew Charlie Walker in his lifetime. I saw Charlie Walker the night of the 11th of March, when he got killed. I had been knowing him about 12 months. We were good friends. I went to the hall that night and I went home with Son Bailey's sister to spend the night. She lived on River avenue, in East Rome. Charlie Walker came in there after me, and I told him I was not going home, and he commenced to curse out there at that woman's house, and came in and slapped me, and wanted to kick me, and drew a pistol on Son Bailey, standing in the door. This was over in East Rome, and about 11 o'clock at night. Charlie Walker followed me from the hall on over to Son Bailey's sister's house. I had gone to bed. Charlie Walker knocked on the door, and they asked who it was, and he said it was Charlie, and they opened the door for him to come in, and he would not do it but stood on the steps and cursed. He was cursing all of us. When Charlie came in the house, Son Bailey and his mother and sister and myself were in there. We had gone to bed. Son Bailey's sister had gone to bed, and his mother too, and Son was fixing to go to bed. Charlie came in and pulled me out of the bed, and jumped on me, and beat me, and cuffed me around there, and Son told him to get out of his mother's house, and he commenced cursing Son, and drew a pistol on Son, and said he was going to kill him if he came out of doors. Son put on his shoes, and Charlie pulled me out of the house, and drug me on, and came across the East Rome bridge; he pulled me on with him. We met Son on Eighth avenue. We came from East Rome over Fourth avenue. When we met Son he had been up to North Rome to look for his little dog, his mother's little dog. When we met, Charlie commenced cursing Son from across the street, and Son came over there, and Charlie had his knife open, and he was walking up on Son, cursing him--told him he was going to kill him; and Son says, 'Leave me alone; I ain't going to bother you;' and Charlie kept walking on him, and Son shot him in the leg, and Charlie kept coming on him with the knife, and he shot him in the stomach. That's the way it was; and Son shot him in the breast there, and they scuffed around there, and I don't know what become of the knife, but Charlie got the pistol out of Son's hands, and Son ran."

W. C. Bowan, another eyewitness to the killing, testified:

"I am a street car conductor and motorman, and was on the 11th day of March, 1921. I remember the occasion when Charlie Walker was shot on upper Broad street, in the city of Rome. That was about 11:20 at night. I was at Eighth avenue, on the west side of Broad street, going up. I

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