Hamby v. State
| Decision Date | 13 October 1944 |
| Docket Number | 30584. |
| Citation | 32 S.E.2d 546,71 Ga.App. 817 |
| Parties | HAMBY v. STATE. |
| Court | Georgia Court of Appeals |
Rehearing Denied Dec. 12, 1944.
Syllabus by the Court. [Copyrighted Material Omitted]
R R. Burger, of Watkinsville, and Orrin Roberts, of Monroe, for plaintiff in error.
D M. Pollock, Sol. Gen., of Monroe, for defendant in error.
1. The rulings announced in headnotes 1, 2, and 4 do not require elaboration.
2. The defendant excepted to a portion of the court's charge wherein the court gave proper instructions on the law of flight. The defendant insists that there was no question of flight in the case, and no testimony to show that the defendant intended at the time to resort to flight. In this connection the able counsel for the defendant is in error. By reference to the record, it is ascertained that there is the question of flight incorporated in this case, for Whitlow, a witness for the State, testified that when the defendant got through shooting, he ran by him; Johnson, another witness for the State, testified that "after the shooting, Mr. Hamby [the defendant] ran." (Brackets ours.) The testimony showed that the defendant ran from the scene of the shooting, which occurred on the premises of one Payne, and that he was arrested at his home about an hour later. The fact that the defendant was apprehended at his home, and that he had not fled from the community in which the crime was committed, and in which he lived, is wholly immaterial, in that there can be no set or specific time necessary to constitute flight; and the distance the accused ran before he was apprehended is also immaterial. Muse v. State, 29 Ala.App. 271, 196 So. 148.
3. The instructions gave the defendant the benefit of two separate theories of defense. One theory which was supported by one phase of the evidence and the defendant's statement is that of justifiable homicide, and is predicated on the Code, §§ 26-1011, 26-1012. These two sections are applicable when the homicide is committed in good faith to prevent the perpetration of a felonious assault upon the defendant, such as is mentioned in Code, § 26-1011, or under the fears of a reasonable man that such an offense would be perpetrated, unless the person who is actually or apparently about to commit it be slain, and, under the theory of these two code sections, the slayer's justification could be complete wtihout showing that, in order to save his own life, the killing of the other was absolutely necessary. § 26-1012. This theory was fully and fairly charged by the judge. The other theory of justifiable homicide, which is supported by another phase of the evidence and the defendant's statement, is based on another kind of justifiable homicide such as is embodied in section 26-1014 of the Code. But this section is applicable only in cases of mutual combat, and does not qualify or limit the law of justifiable homicide as is laid down in sections 26-1011 and 26-1012.
The court charged the jury that, "if you find from all the facts and circumstances of the case that there was a mutual intention to fight, that there was a mutual combat, 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, the killing of the deceased was absolutely necessary, and it must appear, if the person killed was the assailant, that the defendant endeavored to decline any further struggle before the mortal blow was given." To this instruction the defendant excepted on the...
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State v. Rodgers
...short distance and was not trying to conceal himself from arrest * * *.' 2 Ariz.App. at 180, 407 P.2d at 119. See also Hamby v. State, 71 Ga.App. 817, 32 S.E.2d 546 (1944). In this case, the defendant gave an explanation of his abrupt departure in these 'A. Well, I noticed the two gentlemen......
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...in charge to the jury. Dickey v. State, 60 Ga.App. 199, 3 S.E.2d 238; Tucker v. State, 61 Ga. App. 661, 7 S-E.2d 193; Hamby v. State, 71 Ga.App. 817(4), 32 S.E.2d 546. It is impossible for any one to know just what happened just prior to and at the time the fatal shot was fired, --except fr......
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Scott v. State, s. A94A2395
...court at some later date." We disagree. "[T]here can be no set or specific time necessary to constitute flight[.]" Hamby v. State, 71 Ga.App. 817, 818(2), 819, 32 S.E.2d 546. "[I]t is not necessary that the flight take place immediately. Code § 38-302 [now OCGA § 24-3-2][.]" McKuhen v. Stat......
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Uley v. State, 32527.
...in question with a view to ascertaining the impulses, motives, and passions which influenced the defendant in his action. Hamby v. State, 71 Ga.App. 817, 32 S.E.2d 546. 3. Ground 9 is neither mentioned or argued in the brief and since there is no general insistence upon all the grounds, thi......