Campbell v. State

• Decision Date: 13 October 1948
• Docket Number: 16382.
• Citation: 49 S.E.2d 867,204 Ga. 399
• Parties: CAMPBELL v. STATE.
• Court: Georgia Supreme Court

49 S.E.2d 867

204 Ga. 399

CAMPBELL v. STATE.

No. 16382.

Supreme Court of Georgia

October 13, 1948

Syllabus by the Court.

From the evidence and the defendant's statement, facts and circumstances were deducible which would tend to show that the defendant was guilty of voluntary manslaughter, and the trial court erred in not charging the jury on that subject.

Kelly Campbell was indicted and tried for murdering his wife. The jury returned a verdict of guilty without a recommendation of mercy.

On the trial of the case the evidence, briefly, developed the following facts: The homicide occurred at about 6 p.m. on January 15, 1948, near the home of Amanda Truman, mother of the deceased. At about 3 p.m. the defendant, who was separated from his wife, went to the house where she was living with her mother, her daughter, two sisters, and a brother. The defendant knocked on the door, and after some argument was admitted to the house. He attempted a reconciliation with his wife, but she refused to return to him. The mother of the deceased persuaded the defendant to leave the house, but some time later he again returned. He pounded on the door and sought admittance at the front door but those inside refused to admit him. He then left and went nearly a block, borrowed an axe, tried again to get in the front door, and then went around the house and entered the house by the rear door. The deceased fled out of the house through the front door, and the defendant pursued her for about a block; and when she stumbled he struck her with the axe, inflicting a mortal wound.

The exception is to the judgment overruling the defendant's motion for a new trial as amended.

Lucian J. Endicott and Harry S. Baxter, both of Atlanta, for plaintiff in error.

Eugene Cook, Atty. Gen., M. H. Peabody, Asst. Atty. Gen., and Paul Webb, Sol. Gen., Carl B. Copeland, William Hall, and Dan P Winn, all of Atlanta, for defendant in error.

WYATT Justice.

1. Counsel for the plaintiff in error have expressly abandoned the general grounds of the motion for new trial.

The principal question for decision concerns the court's failure to charge the law of voluntary manslaughter. Counsel for the accused filed a timely written request to charge on the law of voluntary manslaughter. This request was couched in almost the exact language of the Code, § 26-1006, as it pertains to voluntary manslaughter, and contained all the ingredients of that crime as defined by that section of the Code. The court did not charge the request, nor the law of voluntary manslaughter generally.

The statement of facts does not purport to contain all of the facts and circumstances surrounding the homicide, but is a mere resume of the general nature of the facts as disclosed by the evidence. There was clearly evidence from which the jury could have found that the accused, with deliberation and premeditation, murdered his wife. However, the evidence was conflicting; and it is difficult, from the evidence, to determine the circumstances surrounding the commission of the cime. Even the testimony of the main witnesses for the State was contradictory. Amanda Truman, the mother of the deceased, testified: that the defendant first came to her home at about 3 p. m., asked to see his wife; that before she admitted him to the house there was considerable argument, during which the defendant told his wife, 'If you don't talk right, I am going to kill you; I am going to kill you anyhow, but I won't kill you now if you talk right.' She testified: That she then opened the door; that 'Kelly told me that he was not going to hurt my daughter, and I let him in. He said, 'Grace, why don't you want to go back?' She said, 'Kelly, we can't get along together and I don't want to go back.' He said, 'Well, I am going to kill you,' and I sent him back out and fastened the door.' Later, under cross-examination, this same witness, testifying as to the same transaction, stated: 'As to whether Kelly was acting all right when he came to the house--he just said he wanted to come and talk with Grace. I don't know whether he was mad or not. He was talking pleasant when he was knocking on the door. He was not drunk that I know of. As to what made him so mad so quick, she said, 'We can't get along.' I did not see anything in his hand at that time. It is true that there was a knife lying on the table that Kelly could have gotten if he had wanted some weapon.' The witness testified that the defendant made a second trip to the house at about 6 p. m., and that the killing occurred shortly thereafter.

Moselle Fields, a sister of the deceased, testified that the defendant first came to the house at about 5:30 p. m., that she let him into the house through the back door, and that the following occurred: 'He asked Gracie, 'Are you and me going back together?' And she said, 'No, we can't get along together, we argue and fuss too much.' He reached over there on the table and said, 'Well, I am going to kill you;' and he went back out the door and went down the alley and got the axe and came back up there and hit the front door.' The witness later testified: 'He came to the back door and knocked on the door and I let him in. My brother and Grace and her daughter were in the room when I let him in. Kelly was not drunk at that time, and he did not act like he was mad. I did not see nothing in his hand. I don't know whether he had any weapons about him or not; I did not see any. When he came in that time there was a knife lying there on the table. As to whether he could have gotten that knife if he wanted to, he did grab at it. He throwed it to the floor. He said, 'I don't want to hurt her with a knife.' He told Mama he did not want to hurt Grace with that knife. Mama pushed him out the back door then. I don't think she could have pushed him out if he did not want to go.' She testified that the defendant, after leaving the house, returned in about fifteen minutes, began beating on the front door, then went to the back door, entered, and chased the deceased out of the house.

The above quotations are given merely to show the general contradictory nature of the evidence relied on by the State. The question with which we are actually confronted is whether any of the evidence, or any portion of the evidence and the defendant's statement, was of such a character as would have authorized the jury to find the defendant guilty of voluntary manslaughter. If the evidence, or the defendant's statement, or portions of the evidence and portions of the statement combined, raise a doubt, however slight, as to whether the homicide is murder or voluntary manslaughter, the court should instruct the jury on the law of voluntary manslaughter. Mincey v. State, 27 Ga.App. 4, 6, 107 S.E. 546; Tucker v. State, 61 Ga.App. 661, 7 S.E.2d 193.

In the instant case, certain portions of the evidence and the defendant's statement tended to establish the following facts: The defendant and the deceased were separated. He was suspicious of his wife's conduct. (He had told one witness that the mother of the deceased was doing nothing but run a lewd house, or words to that effect. A neighbor testified that he had seen many men going into the house where the deceased lived. The defendant told the arresting officer that he killed his wife because 'she had messed him up with a man.') On the date of the homicide the defendant went to the home of his wife's mother, was admitted, and attempted to have a reconciliation with his wife but failed. At this time he was not drunk and was talking pleasantly. There was, at that time, a knife lying on a nearby table and readily available if he had had any intention of killing his wife. The defendant left the house voluntarily at the request of his mother-in-law. Apparently, however, he remained in the vicinity of the house for quite some time. After he had left his mother-in-law saw him at a window and asked him what he was doing there, to which he replied, 'I know there is a man in there.' (The mother-in-law testified that, seeing the defendant at a window, she said, 'Kelly, what are you doing there,' to which he replied, 'I know a man is in there.') While the defendant was passing by a window he saw a man inside the house. (In his statement, the defendant stated: 'I left, and I seen a man by passing the window, and I went on around in the alley and borrowed an axe. I did not know what he had and I wanted to have something to protect myself. I come on back to the house and I knocked on the door, but her Mama came to the door and she did not open the door.') The defendant tried to get into the house, but he was refused admission. He charged that there was a man inside the house. This was denied by those inside. He then borrowed an axe, tried to break in the front door, ran around to the back door, entered, pursued his wife through the house and out into the streets and killed her.

'In all cases of voluntary manslaughter, there must be some actual assault upon the person killing, or an attempt by the person killed to commit a serious personal injury on the person killing, or other equivalent circumstances to justify the excitement of passion, and to exclude all idea of deliberation or malice, either express or implied. Provocation by words, threats, menaces, or contemptuous gestures shall in no case be sufficient to free the person killing from the guilt and crime of murder.' Code, § 26-1007. In Mack v. State, 63 Ga. 693, 696, this court said: 'What circumstances will present this equivalence and justify the excitement of passion, and exclude all idea of...