Franklin v. State
| Decision Date | 20 October 1916 |
| Docket Number | (No. 35.) |
| Citation | 146 Ga. 40,90 S.E. 480 |
| Parties | FRANKLIN. v. STATE. |
| Court | Georgia Supreme Court |
(Syllabus by the Court.)
Error from Superior Court, Laurens County; J. L. Kent, Judge.
Albert Franklin was convicted of murder, and brings error. Reversed.
Albert Franklin was indicted for the murder of G. S. Sowells. Upon the trial the jury returned a verdict of guilty, with a recommendation. The evidence for the state shows a cause of unprovoked murder; but the evidence introduced by the defendant tended to show that the accused and the decedent had an altercation at a ball game; that threats were there made against the defendant by the decedent; that subsequently the accused procured a gun and approached a group of men, of which the decedent was a member, and inquired if Sowells was in the crowd; that Sowells jumped from behind the crowd and inquired, after cursing the defendant, "What do you want?" whereupon the defendant said, "I just want to make you up that little trouble between us, " and at about that time Sowells began to snap a pistol, and some one went to shooting and shot the defendant's hat off; and that the defendant then turned around and fired twice, one of the shots being fatal. The defendant made a motion for a new trial, which was overruled, and he excepted.
T. E. Hightower and W. A. Dampier, both of Dublin, for plaintiff in error.
E. L. Stephens, Sol. Gen., of Wrightsville, Clifford Walker, Atty. Gen., and Mark Bolding, of Atlanta, for the State.
BECK, J. (after stating the facts as above). The theory of mutual combat was involved in this case. The jury might have found from the evidence that the defendant, when he approached the group of men where the decedent was, was seeking an encounter with the decedent. According to his statement made at the trial and the testimony of one of his witnesses, the intention of the accused was entirely pacific. But the jury might well have believed the contrary. They might also have believed, if they accepted as true the testimony of one of the witnesses introduced by the defendant, that the decedent was endeavoring to shoot the accused. The judge charged the jury section 70 of the Penal Code, which defines the expression "justifiable homicide, " and followed this with the charge upon the subject of voluntary manslaughter. He then charged the provisions of section 71 of the Penal Code in the language of that section, and in immediate connection with this charged the jury that:
"There is another section of the Code that I charge you as a matter of defense, which you will consider separately and distinct to the ones heretofore defined to you; because if not so considered it will certainly lead you to error."
With this preface the court charged in the language of the statute section 73 of the Penal Code. There was no explanation of the facts and circumstances under which section 73 is applicable, and the omission to instruct the jury as to the facts and circum stances under which the last-mentioned section is applicable was such an error as requires the grant of a new trial. It was proper in this...
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Brown v. State, 23791
...applies only if the jury finds that the parties engaged in mutual combat. Hall v. State, 133 Ga. 177(3), 65 S.E. 400; Franklin v. State, 146 Ga. 40, 90 S.E. 480; White v. State, 147 Ga. 377(5), 94 S.E. 222; Surles v. State, 148 Ga. 537(7), 97 S.E. 538; Kelly v. State, 204 Ga. 239(2), 49 S.E......
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Cribb v. State
...death, generally with deadly weapons. Teasley v. State, 104 Ga. 738, 30 S.E. 938; Pugh v. State, 114 Ga. 16, 39 S.E. 875; Franklin v. State, 146 Ga. 40, 90 S.E. 480; Boatwright v. State, 162 Ga. 378, 134 S.E. 91. See also Powell v. State, supra, in all of which verdicts for murder were retu......
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Kelly v. State
...in such a manner as to confuse the jury in a proper application of the principles of law as contained in § 26-1014. Franklin v. State, 146 Ga. 40, 90 S.E. 480; Boatwright v. State, 162 Ga. 378, 379(4), 134 91; Little v. State, 164 Ga. 509(5), 139 S.E. 37; Smith v. State, 203 Ga. 317, 46 S.E......
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Brown v. State, (No. 6822.)
...this should be done so as not to confuse the jury or make them all applicable to the same theory or state of facts." In Franklin v. State, 146 Ga. 40, 90 S. E. 480, the court announced the same doctrine as expressed in the above-quoted syllabus, but the judgment of the trial court was rever......