Goldsmith v. State, 25623.

• Decision Date: 23 September 1936
• Docket Number: No. 25623.,25623.
• Citation: 54 Ga.App. 268,187 S.E. 694
• Parties: GOLDSMITH. v. STATE.
• Court: Georgia Court of Appeals

54 Ga.App. 268

187 S.E. 694

GOLDSMITH.

v.STATE.

No. 25623.

Court of Appeals of Georgia, Division No. 1.

Sept. 23, 1936.

Syllabus by the Court.

1. The evidence supports the verdict of voluntary manslaughter.

2. Voluntary manslaughter being in the ease, the court properly charged the law applicable to that crime.

3. The court did not err in refusing to give the jury the requested charge upon the subject of "reasonable fears."

Error from Superior Court, Sumter County; C. W. Worrill, Judge.

Berta Mae Goldsmith was convicted of voluntary manslaughter, and she brings error.

Affirmed.

R. L. Le Sueur, of Americus, for plaintiff in error.

Hollis Fort, Sol. Gen, of Americus, for the State.

MacINTYRE, Judge.

Berta Mae Goldsmith was indicted for committing murder on November 4, 1935, in Sumter county, Ga, by "striking, beating, and cutting * * * Northern Gold smith with an ax." The jury found the defendant guilty of voluntary manslaughter. The exception is to the overruling of her motion for new trial containing the general and two special grounds. The deceased was the defendant's husband. He was found dead "down in the woods, " with wounds on and about his head that appeared to have been inflicted with an ax which was found near the body, and which had blood on it. The body was not rigid, and the victim appeared to have been killed recently. There was a little puddle of blood about four feet from his head. Press Anglin testified in part: "I did not see nothing around where I saw his body-but a little old pine tree, * * * an old half of a pine cut down. * * * There were some chips there; there was no wood 'cut. Where they cut in the butt part of the tree the two limbs were cut there. * * * I saw no other weapon at all besides the ax down there. * * * The ax was lying by a limb. * * * It looked like there had been a scuffle there. * * * I found no stove wood cut there. * * * I disremember nowwhether or not I saw any piece of a free that had been cut off from the rest of the tree lying on the ground. The pieces of limb that I was talking about seeing there were long pieces, something like three feet long. They were as big as something like that. * * * I reckon I could take one of those pieces of limb and hit a person hard enough with it to kill him." Deputy sheriff Chappel testified, in part: "I went down there and found the body by a pine top where the timber had been cut and the old top * * * left there. * * * A man could kill another with a piece of wood three feet long and that big in diameter. I don't know how much strength that negro had, but from his looks I would say that he could have killed his wife with a piece of wood like that. He could have killed her with the ax. * * * I asked her why she killed Goldsmith, and she said he told her he was going to kill her about a negro by the name of Jackson, and she just killed him before he made any attempt to kill her. She said she killed with an ax. * * * I asked her the question if he attempted to hit her, and she said he did not; that he just said he was going to kill her, and did not have anything to hit her with, and she hit him with the axe." Sheriff McArthur testified substantially as did Chappel as to the statement made by the defendant in regard to the homicide. In her statement to the jury, the defendant said, in part: "My husband ask me to go down in the woods with him, and after we got down there he told me he was going to kill me. * * * He said he heard something about me. * * * I would not have killed him for nothing if I had not thought he was going to kill me. He told me he was going to kill, and drawed back to hit me with the ax, and I snatched it from him and took it away from him, and he reached down and got a piece of wood to hit me with, and I hit him before he hit me with the wood. * * * I would not have killed him for nothing if he had not been trying to kill me."

We shall only say, in regard to the evidence bearing upon the defendant's sanity, that the jury was warranted in finding that she knew the nature and quality of her acts at the time of the killing, and that she was responsible for them. But it is urged in the first special ground that the court erred in charging the jury the law of voluntary manslaughter because there was nothing in the evidence or the defendant's statement to warrant such a charge. It is also insisted that the evidence does not support the verdict of voluntary manslaughter. "When a defendant is put upon his trial for murder, and there is any doubt as to the grade of homicide of which he is guilty, it is the duty of the Court clearly and distinctly to instruct the Jury as to the law, defining the several grades of homicide, as recognized by the Penal Code, and then leave it to the Jury to find from the evidence of what particular grade he is guilty." Crawford v. State, 12 Ga. 142 (6). In Jackson v. State, 76 Ga. 473, 478, it was held that "where there is evidence sufficient to raise a doubt, however slight, upon the point, whether the crime be murder or manslaughter, voluntary or involuntary, the court should instruct the jury upon these grades of manslaughter as well as murder." Wynne v. State, 56 Ga. 113 was cited to support the above statement. In Strickland v. State, 133 Ga. 76, 65 S.E. 148, the foregoing decisions were approved. In White v. State, 27 Ga.App. 194, 107 S.E. 890, this court said: "It is not error on the trial of one indicted for murder to instruct the jury upon the law of voluntary manslaughter, where from the evidence or from the defendant's statement to the jury there is anything deducible which would...