Fullwood v. State

• Decision Date: 20 October 1942
• Docket Number: No. 29779.,29779.
• Citation: 22 S.E.2d 526
• Parties: FULLWOOD. v. STATE.
• Court: Georgia Court of Appeals

22 S.E.2d 526

FULLWOOD.

v.STATE.

No. 29779.

Court of Appeals of Georgia, Division No. 1.

Oct. 20, 1942.

Syllabus by the Court.

1. In a proper case the principle involving self-defense as contained in the Code § 26-1011 and § 26-1012, should be charged in connection with the principle of mutual combat as contained in Code § 26-1014. They may be charged in immediate sequence. They must not be charged in such a way as to make them apply to the same theory or state of facts.

2. It is not reversible error to refuse a written request to charge when the principles requested are sufficiently covered by the general charge.

3. The evidence being sufficient to sustain the verdict, this court is without authority to disturb it.

Error from Superior Court, Laurens County; R. Earl Camp, Judge.

Sylvester Fullwood was convicted of voluntary manslaughter, and he brings error.

Judgment affirmed.

The defendant was tried for murder and convicted of voluntary manslaughter. He filed a motion for new trial, which was overruled, and he excepted. He introduced no witnesses. He made a statement. The evidence which supported the contentions of the State was briefly as follows: The defendant and the deceased engaged in a quarrel. The deceased started to advance, unarmed, toward the defendant who was standing approximately twenty-four feet away. Whereupon the defendant shot the deceased with a pistol, inflicting a wound which caused death. The cause of the difficulty was not clearly revealed. A reasonable interpretation is that the quarrel arose concerning money which the defendant claimed the deceased owed. There was no weapon near where the deceased fell. He fell where he was standing when shot. One witness for the State testified he heard the sound of the pistol shot and went immediately to the scene. When he arrivedthe deceased had no weapon in his hand, and the witness saw no evidence of any weapon nearby that the deceased could have had at the time of the shooting. The defendant stated to the witness that the reason he killed the deceased was that he was advancing on him with a "fat light-wood root". The officers arrived on the scene soon after the occurrence. Both officers testified that there was no such weapon near the deceased; that the only weapons of such kind near the body were two pieces of pine wood, one of which was overgrown with grass and the other embedded in the earth, thus giving evidence that neither had been recently disturbed.

The evidence sustained the contention of the defendant as revealed by his statement. On cross-examination the testimony of one of the State's witnesses was to the following effect: The defendant went down to the scene of the killing where the deceased was engaged in a game. Seeing money on the ground in front of the deceased, defendant asked him to pay certain rent due the defendant. The deceased denied that the rent was due. The quarrel followed. After the exchange of heated words the deceased started toward the defendant with a fat lightwood root, about three or three and one-half feet long, being a deadly weapon. The deceased advanced toward the defendant with the remark that "he would soften him up." The State's witness on cross examination testified that he saw the difficulty and that he advised his father-in-law, the deceased, not to advance on the defendant, that he had a pistol. The deceased did not heed this admonition but kept advancing toward the defendant with the lightwood weapon drawn back, whereupon the defendant shot him. The defendant went from the scene of the killing by his home to the sheriff's office and surrendered, stating to those with whom he talked that he had killed the deceased in self-defense.

W. A. Dampier, of Dublin, for plaintiff in error.

J. Eugene Cook, Sol. Gen., of Dublin, for defendant in error.

GARDNER, Judge.

1. We will deal with the special grounds first. Ground 1 is as follows:

"Movant contends that he should be granted a new trial in said case for the reason that the court erred in charging the jury as follows: 'The court instructs you that in case of mutual combat, if a person kill another in his 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 other was absolutely necessary, and it must appear also 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. Before the slayer can be justified it must appear that he acted without malice, not in a spirit of revenge; that the deceased was the assailant; that in order to save his own life it was necessary to kill his adversary, or that he was under the pressure of other equivalent circumstances. He can not avoid the fearful responsibility of guilt by the bare fear of the apprehension of danger; the danger must be urgent and pressing at the time. He must decide the momentous question with reference to his accountability to the law at the time, and by the same mental and moral faculties which he employed to shoot. Mutual intent to fight does not necessarily reduce the crime from murder to manslaughter. In order to do so the killing must be the result of that sudden violent impulse of passion, supposed to be irresista-ble;for if there should have been an interval between the assault or provocation given and the homicide, of which the jury in all cases shall be the judges, sufficient for the voice of reason and humanity to be heard, the killing shall be attributed to deliberate revenge and be punished as for murder.

" 'Justifiable homicide, gentlemen of the jury, is the killing of a human being in self-defense, or in defense of person, habitation or property, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony on another. A bare fear of any of these offenses, to prevent which the homicide is alleged to have been committed, shall not be sufficient to justify the killing. The circumstances must be such as to excite the fears of a reasonable man, and that the party killing really acted under the influence of those fears, and not in a spirit of revenge.'"

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