Dupree v. State

• Decision Date: 16 May 1957
• Docket Number: No. 19661,19661
• Citation: 213 Ga. 348,99 S.E.2d 81
• Parties: Lem (Best) DUPREE v. The STATE.
• Court: Georgia Supreme Court

Page 81

99 S.E.2d 81

213 Ga. 348

Lem (Best) DUPREE v. The STATE.

No. 19661.

Supreme Court of Georgia.

May 16, 1957.

Rehearing Denied June 12, 1957.

Syllabus by the Court.

1. The evidence not disclosing a mutual intent to fight, it was not eror to refuse the defendant's request to instuct the jury on the law of mutual combat as related to voluntary manslaughter.

2. 'In giving requested instructions, the court should do so in such a manner as

to impress the jury that such are emanations from the court and are to be considered as part of the court's instructions on the law of the case. This is best accomplished by incorporating such requests at some appropriate place in the charge, without stating that the requests were made by a party to the case. While the practice is not commended, a new trial will not be granted solely because the court near the conclusion of his charge picked up certain written requests and read them to the jury, with the preface, 'The defendant has requested the court to charge you the following, which I will read to you.'' Dotson v. State, 136 Ga. 243, 71 S.E. 164.

3. Evidence that, at the time and place the defendant shot and killed the deceased, he also shot and wounded four other persons, was admissible as a part of the res gestae and to show the animus of the defendant.

4. The propriety of the remarks by the trial judge during the examination of a witness cannot be raised for the first time in the motion for a new trial.

5. The evidence supports the verdict.

H. Dale Thompson, Dublin, for plaintiff in error.

W. W. Larsen and Harold E. Ward, Sol. Gen., Dublin, Eugene Cook, Atty. Gen., and Rubye G. Jackson, Atlanta, for defendant in error.

ALMAND, Justice.

On the indictment charging him with murder, Lem Dupree on his trial was found guilty of killing Annie Smith by shooting her with a shotgun, and was sentenced to death. His motion for a new trial was denied and he seeks a review of that judgment.

The evidence in the record discloses that the defendant, on October 11, 1956, came to the home of Nettie Mae Walker and threatened to cut Smithy Locke, a sister of Walker, with a knife. The police were called and, while they were searching for the defendant, the defendant returned to the Walker house with a shotgun and fired a shot through the window, hitting Smithy Locke in her face and putting out an eye. He then shot Annie Smith in the back, wounding her. The defendant then went to another window and, after saying 'I'm going to kill all of you son-of-bitches,' fired another shot, striking Annie Smith in the side of her body, these two wounds causing her death. Three other shots struck three children in the house, putting out the eyes of one of them.

The defendant, in his statement to the jury, said that he went to the home of Nettie Mae Walker to talk to her sister, Smithy Locke; that Nettie Mae Walker refused to let him into the house and threatened to shoot him and did shoot at him; that, feeling that she had 'done me wrong,' he borrowed a shotgun and returned to the Walker house; that Annie Smith was standing at the fireplace with something in her hand; that he did not know whether it was a knife or a gun; that 'when she wheeled, I said 'Ain't no use to wait and let you come out the door on me' I said 'I'm going to shoot you,' and I shoot.'

R. G. Smith, a witness for the State, testified that, after the shooting, the only gun that he found in the house was a .22 caliber rifle, covered with dust and its barrel corroded, lying on the kitchen woodpile.

1. Special ground 4 assigns error on the failure of the court to give the defendant's requested charge on the law relating to mutual combat, in connection with the charge on voluntary manslaughter. The evidence in the instant case does not show a mutual intent to fight, which is an essential ingredient of mutual combat, and the court did not err in refusing to instruct the jury on this theory of voluntary manslaughter. Mims v. State, 188 Ga. 702, 4 S.E.2d 831; Roberts v. State, 189 Ga. 36 5 S.E.2d 340; Mathis v. State, 196 Ga. 288, 291, 26 S.E.2d 606.

2. In instructing the jury on the law of voluntary manslaughter, the court said: 'Now it has been requested by counsel for the defendant in this case the I charge you on the law of manslaughter, and in this connection, I charge you as follows.' The court then instructed the jury on the law relating to manslaughter. Special ground 6 complains that the remarks of the court as to the charge being given at the request of the defendant 'weakened the charge in that it would create the impression upon the minds of the jury he was charging the law as requested and contended by counsel for the defendant and not as his own interpretation of the law.'

Under the previous unanimous decisions of this court, this ground is without merit. Hamilton v. State, 129 Ga. 747(1), 59 S.E. 803; Dotson v. State, 136 Ga. 243(3), 71 S.E. 164. See also Comer & Co. v. Allen, 72 Ga. 1(5), and Yeates v. Yeates, 162 Ga. 153(3), 132 S.E. 768. While this practice is not to be commended, the fact that the court said that it was giving the particular charge of law at the request of the defendant does not demand the grant of a new trial.

3. Special grounds 13 and 15 assign error on the court's allowing in evidence testimony as to the shooting of other persons by the defendant, over the objection that the defendant was on trial only for the murder of Annie Smith, and that evidence of other shootings was irrelevant and prejudicial to the defendant.

The undisputed evidence shows that the shooting and wounding of the five persons was part of...