Butt v. State

• Decision Date: 18 June 1920
• Docket Number: 1831.
• Parties: BUTT v. STATE.
• Court: Georgia Supreme Court

103 S.E. 466

150 Ga. 302

BUTT v. STATE.

No. 1831.

Supreme Court of Georgia

June 18, 1920

Syllabus by the Court.

The instruction to the jury as to the form of a verdict of guilty of murder, with recommendation of life imprisonment, did not tend to limit the discretionary power of the jury to render such a verdict.

There was evidence from which the jury might have concluded that at the time of the homicide the accused and the person killed were engaged in mutual combat, and the failure of the court to instruct the jury as to the law on that subject was error requiring the grant of a new trial.

As the law of voluntary manslaughter was involved in the case, the court should have instructed the jury as to the provisions of the act of August 18, 1919 (Acts 1919, p. 387), requiring the jury to prescribe a minimum and maximum term of punishment in the event of a verdict of guilty of offenses falling within the provisions of that act.

It is not necessary to pass on the question as to the alleged disqualification of two of the jurors who tried the case, as it will not, of course, arise in another trial.

The other grounds of the motion for new trial are without merit and do not call for special comment.

Error from Superior Court, Union County; J. B. Jones, Judge.

Ed Butt was convicted of murder without recommendation, his motion for new trial was denied, and he brings error. Reversed.

Wm Butt, of Blue Ridge, T. S. Candler, of Blairsville, John M Johnson, of Hiawassee, Garland M. Jones, of Newnan, B. P. Gaillard, Jr., of Gainesville, and N. A. Morris and Harold Hawkins, both of Marietta, for plaintiff in error.

Jos. G. Collins, Sol. Gen., of Gainesville, Clifford Walker, Atty. Gen., M. C. Bennet, of Macon, and Pat Haralson, of Blairsville, for the State.

FISH C.J.

Ed Butt was found, without recommendation, guilty of the murder of Bass M. Petty, and he brought the case to this court by a bill of exceptions, assigning error upon the overruling of his motion for a new trial.

1. The motion complains of the following instruction by the court to the jury:

"If you reach the conclusion that the defendant is guilty of the offense of murder, then it is your duty to convict him of that offense, and in that event the form of your verdict would be, 'We, the jury, find the defendant guilty,' and that would mean punishment by death. Should you convict him and recommend him to life imprisonment, then the form would be, 'We, the jury, find the defendant guilty, and recommend that he be imprisoned in the penitentiary for and during his natural life.' The punishment there, then, would be imprisonment for and during his natural life."

The error assigned upon this instruction is to the effect that in it the court failed to inform the jury that they had the legal right, power, and authority to make such recommendation, in the event of a verdict of guilty, for any reason they deemed fit and proper, or for no reason at all. Error was further assigned upon the expression "should you convict him and recommend him to life imprisonment," because it "implied a doubt in the mind of the court that the jury would recommend him for life imprisonment," and therefore lessened the probability of the jury making such a recommendation, and was also error because it was an expression of opinion on the part of the court that the jury should not make such recommendation. Prior to the instruction now under consideration in reference to the form of the verdict the court, after charging as to the offense of murder, stated to the jury:

"The punishment for persons convicted of murder shall be death, but may be confinement in the penitentiary for life if the jury trying the case shall so recommend."

This language is in the Penal Code, § 63.

There are many decisions of this court to the effect that the jury in the trial of one charged with murder are invested by law with the right and power of fixing the punishment by recommendation to life imprisonment, and whether they will so recommend or not is a matter entirely in their discretion, which is not limited or confined in any case. In such decisions, however, instructions of the trial judge were under review, and the question was whether they tended to limit or confine the uncontrolled discretion of the jury in respect to recommendation to life imprisonment. See Cohen v. State, 116 Ga. 573, 42 S.E. 781. The instruction here complained of had no tendency of that character, but was sufficiently broad to authorize the jury to exercise their unlimited discretion as to recommendation; and, the section of the Penal Code on the subject having been given to them, we are unable to perceive how they were likely to have been misled. If further instruction as to the unlimited right and power of the jury to recommend life imprisonment was desired, an appropriate and timely written request therefor should have been made. The assignment of error is therefore held to be without merit. Nor is the instruction subject to the criticism that the judge therein expressed or intimated any opinion that the jury should not make a recommendation to life imprisonment.

2. Error is assigned upon the failure of the court to instruct the jury as to the law of mutual combat, the movant contending that there was evidence requiring an instruction on that subject. The evidence set out in the motion to sustain such contention is to the following effect: Mrs. Gurley, a witness for the defendant, testified, in substance, that Butt, the accused, said to Petty, the deceased, that Petty had killed the hogs of Butt, and that he had found them on the branch that morning. Petty replied he did not dispute that Butt had found them, but that he (Petty) did not kill them. Butt drew a mark and said to Petty, "If you come to that mark, I will whip you." Petty came to the mark. Butt ran to the woodpile. Petty thereupon went to the mark with an open knife in his right hand. At the time Butt fired at Petty the latter was trying with his left hand to catch Butt, and was running towards him, and Butt "kinder" jumped back in front of Petty when Butt shot, and Petty liked to have got him before he attempted to shoot him. At the time Butt fired Petty was running at him with the knife.

F. H. Anderson, a witness for the state, testified, in part, substantially as follows:

"Just before the shooting I heard loud talking, and looked back towards Stroud's store and saw Butt and Petty and Stroud standing there. Butt and Petty were in a controversy about some hogs, it seemed. Butt told Petty he had killed two of Butt's hogs, and that he had found them where Petty had buried them. Petty said, 'I didn't kill them, and I don't know who did kill them;' and Butt walked down a little ways towards the front of the post office, made a mark with a stick, and dared Petty to the mark. Petty walked down in the direction of the mark very deliberately and stopped at the mark; some other words were passed between them, and Butt walked around to the south and turned back straight down again. * * * The next time I looked around was after the shooting commenced; when the first shot fired I jumped up and turned and looked as straight as I could in a very few seconds, and Ed [Butt] started running and Petty was behind a big sycamore tree in front of Stroud's place, and that obscured the view from me, and I didn't see Petty until he started running after Ed, after Ed commenced shooting, and he ran until he fell in the street."

W. H. Stroud, a witness for the state, testified, in part, substantially as follows:

Butt and Petty were cursing each other all the time during the first, second, and third rows. Butt didn't curse any more than Petty; both cursed about the same; they got up at same time. Butt had his hand in pocket. Petty drew his knife.

The motion quotes a part of the statement made by the accused to the jury, as follows:

"I walked in front of

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