Dye v. State

• Decision Date: 01 October 1962
• Docket Number: No. 21749,21749
• Citation: Dye v. State, 127 S.E.2d 674, 218 Ga. 330 (Ga. 1962)
• Parties: Bernard DYE v. The STATE.
• Court: Georgia Supreme Court

Page 674

127 S.E.2d 674

218 Ga. 330

Bernard DYE v. The STATE.

No. 21749.

Supreme Court of Georgia.

Oct. 1, 1962.

Syllabus by the Court

1. On the trial of one indicted for murder, it is error to charge Code § 26-1014, which is applicable only to cases of mutual combat, where neither the evidence nor the statement of the defendant tends to show that at the time of the homicide the deceased and the defendant were engaged in mutual combat.

2. The trial judge was justified in concluding that a statement made by defendant at the time of his arrest was not a part of the res gestae where several minutes, five or six or up to fifteen, had elapsed between the time of the killing and the making of the statement and defendant had ample opportunity to plan the statement as a part of his defense.

3. (a) It is not error for the trial judge to admit evidence over objection where the same evidence was introduced without objection.

(b) Evidence that two other parties were shot by the defendant in the same transaction which killed the deceased for whose death defendant is being tried is admissible as a part of the res gestae to show a reckless disregard for human life from which a presumption of malice may arise.

4. The admission into evidence of a shotgun not used in the shooting but which was found in defendant's car after he had killed the deceased where defendant had had an altercation with deceased's wife, had left in his car saying that he would be back, and had returned with a rifle and the shotgun, was not error as this was evidence of premeditation and malice.

Bernard Dye was indicted for the murder of Otis Rabun by shooting him to death with a rifle. He was tried and found guilty without recommendation. His motion for new trial on the general and special grounds was overruled, and to this judgment he excepts. He abandoned the general grounds.

Robert Knox, Warren Evans, Thomson, for plaintiff in error.

Kenneth Goolsby, Sol. Gen., Randall Evans, Jr., Thomson, Eugene Cook, Atty. Gen., Rubye G. Jackson, Asst. Atty. Gen., Atlanta, for defendant in error.

MOBLEY, Justice.

1. In special ground 4 defendant assigns error on the following charge: 'I charge you, gentlemen of the jury, you will observe that 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 sufficient to justify the excitement of passion and exclude all idea of deliberation or malice. Evidence of such assault may be found in a mutual intention to fight and in the fact that there was an approach by the deceased to the defendant in the furtherance of this design when it was not necessary for him to do so in self-defense.

'I charge you, gentlemen of the jury, if you believe from all the facts and circumstances of this case beyond a reasonable doubt, including the defendant's statement, that there was a mutual intention to fight and that there was a mutual combat, that the defendant killed the deceased, then in order for the defendant to claim self-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 deceased was absolutely necessary. It must also appear 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.'

Defendant contends that the charge was erroneous because under no theory of the evidence or defendant's statement was mutual combat involved; that it led the jury to believe that, before defendant would be justified in the killing, an actual necessity must have existed to take the life of the deceased to save his own life, and that it excluded the defense of defendant that he killed the deceased acting under the fears of a reasonable man that his life was in danger and that a felony was about to be committed upon him.

The charge complained of included Code § 26-1014, which this court has held in numerous cases 'is neither required nor authorized' where under no theory of the evidence or defendant's statement was mutual combat involved. Bivins v. State, 200 Ga. 729, 733(2), 38 S.E.2d 273, and cases cited therein. 'Where the State's evidence makes a case of murder, and the defendant's statement and his evidence shows a case of justifiable homicide, a charge upon the law of voluntary manslaughter as applicable to mutual combat is neither required nor authorized.' Porter v. State, 213 Ga. 325, 326, 99 S.E.2d 110, 111.

An inference could not be drawn from the evidence or the defendant's statement that mutual combat was involved in this case. The evidence was as follows: Defendant and his wife, Flay Dye and his wife, and the wife of the deceased, Otis Rabun, had gathered in the house of Flay Dye to watch television. Defendant had been drinking and was talking and disturbing those trying to look at television. In walking across the room defendant struck the sore knee of Mrs. Otis Rabun, the deceased's wife. Words passed and defendant slapped Mrs. Rabun, bruising her eye and loosening a tooth. Flay Dye told his brother, the defendant, to leave his house and when the defendant refused, Flay wrestled him out. Defendant left in his automobile, saying that he would be back. Mrs. Rabun went across the street to her home and awakened her husband who was sleeping before going to work at midnight. Flay Dye and his wife and defendant's wife and children also went over to Rabun's house. Rabun called the police, they came out, took the report, and left to find the defendant. Within a few minutes the defendant drove up in his car, parked in front of Flay Dye's house, got out and with his rifle in his hands went in and through Flay Dye's house and then started walking toward Rabun's house. At about the time defendant started up the steps Rabun asked his wife for his pistol, saying, 'Give me my gun.' Defendant walked up on the porch with rifle in hand and asked if his wife and children were there. Rabun answered that they were, that they could come out, and for him not to come in his house. Defendant said he was not coming in. As defendant's wife with her child in her arms got to the door, and about the time her hand reached the doorknob, the defendant started shooting into the room where all the named parties were. Defendant's wife and child were both shot and fell to the floor and Otis Rabun was shot and killed. Eight shots were fired into the house. Three shots were fired from inside the house, as shown by bullet holes in the door, and the defendant was hit in the shoulder by a bullet from Otis Rabun's pistol. There was testimony that the first shot came from the porch, and other evidence that 'I couldn't say about the shooting going both ways, just right and left all at the same time, but they was firing, an the firing was shot at one time.' There was evidence that the defendant was under the influence of intoxicants when arrested.

The defendant in his statement stated that he left his broth...