Grant v. State

• Decision Date: 02 September 1969
• Docket Number: No. 2,No. 44642,44642,2
• Citation: Grant v. State, 170 S.E.2d 55, 120 Ga.App. 244 (Ga. App. 1969)
• Parties: Wiley J. GRANT v. The STATE
• Court: Georgia Court of Appeals

Page 55

170 S.E.2d 55

120 Ga.App. 244

Wiley J. GRANT v. The STATE.

No. 44642.

Court of Appeals of Georgia, Division No. 2.

Sept. 2, 1969.

Smith, Gardner, Wiggins, Geer & Brimberry, Peter Zack Geer, Albany, for appellant.

Fred Hand, Jr., Dist. Atty., Pelham, for appellee.

Syllabus Opinion by the Court

BELL, Presiding Judge.

1. (a) The defendant, indicted for murder, was convicted by a jury of voluntary manslaughter and sentenced to ten years. He appeals from the conviction. The defendant contends that the court erred in charging the jury on the law of justifiable homicide while engaged in mutual combat as there was no evidence of mutual combat. Mutual combat usually arises when the parties are armed with deadly weapons and mutually agree or intend to fight with them. Mutual combat does not mean a mere fist fight or scuffle. Joyner v. State, 208 Ga. 435, 439, 67 S.E.2d 221; Langford v. State, 212 Ga. 364, 366, 93 S.E.2d 1; Watson v. State, 66 Ga.App. 242, 17 S.E.2d 559; Wingate v. State, 68 Ga.App. 265, 266, 22 S.E.2d 758; Gilbert v. State, 94 Ga.App. 217, 218, 94 S.E.2d 109. The evidence here does not show a mutual intent to engage in a fight with weapons. The deceased was unarmed and sought out the defendant after an earlier quarrel and struck him with his fist. A fist fight ensued and after being kicked in his sensitive areas, the defendant shot the deceased. The court's charge to the jury on mutual combat (Code Ann. § 26-1014) was harmful error as it placed upon the defendant a heavier burden than required. His defense was planted wholly in the provisions of Code Ann. §§ 26-1011 and 26-1012. Dye v. State, 218 Ga. 330, 334, 127 S.E.2d 674; Brown v. State, 223 Ga. 76, 80, 153 S.E.2d 709; Price v. State, 114 Ga.App. 580, 152 S.E.2d 9. Enumerations 1, 2 and 3 concern excerpts of the court's charge on mutual combat. As it was error to charge the jury on the subject, these enumerations are meritorious.

(b) In a criminal prosecution Code Ann. § 26-1014 (mutual combat) is not compatible with Code Ann. § 26-1011 (justifiable homicide in prevention of a felony) and Code Ann. § 26-1012 (reasonable fear of felony being committed on the person). The standards are so different that the commingling of Code Ann. § 26-1014 with the other two is ipso facto harmful. McKibben v. State, 88 Ga.App. 466, 472, 77 S.E.2d 86. The charge in this case had this commingling effect.

2. The defendant by his own statement and the tenor of the testimony of his witnesses sought exculpation on the theory of justifiable homicide in the prevention of the commission of a felony upon himself. Code Ann. §§ 26-1011, 26-1012. There was also evidence which raised the issue of voluntary manslaughter. The court gave a definition of voluntary manslaughter in the literal terms of Code Ann. § 26-1007 except the court substituted the following clause 'or an attempt by the person killed to commit a felony on the person killing' for the clause that appears in § 26-1007 which reads 'or an attempt by the person killed to commit a serious personal injury on the person killing.' Immediately following this charge, in a separate paragraph, the court instructed the jury on justifiable homicide on the basis of self-defense of one's person against one who manifestly intends or endeavors by violence or surprise to commit a...