Hartley v. State
| Decision Date | 14 March 1929 |
| Docket Number | (No. 6889.) |
| Citation | 168 Ga. 296,147 S.E. 504 |
| Parties | HARTLEY v. STATE. |
| Court | Georgia Supreme Court |
(Syllabus by the Court.)
Error from Superior Court, Richmond County; A. L. Franklin, Judge.
Ed Hartley was convicted of murder, and he brings error. Affirmed.
J. H. King, R. L. Chambers, Jr., Josephine McDonald, and P. H. Rowe, all of Augusta, for plaintiff in error.
George Hains, Sol. Gen., of Augusta, Geo. M. Napier, Atty. Gen., T. R. Gress, Asst. Atty. Gen., and John M. Graham, of Atlanta, for the State.
RUSSELL, C. J. Ed Hartley was indicted for the murder of Pete Sullivan. Upon the trial evidence introduced in behalf of the state was to the effect that at the time of the homicide the deceased was so drunk that he could barely stand, and was staggering around on the sidewalk. He and the defendant engaged in a quarrel about some matter. The defendant slapped and beat the deceased, who offered no resistance, and, after knocking the deceased down, "the defendant got on his back and beat him some more." Both of them arose from the sidewalk, and the defendant pulled out his knife, opened it, and told the deceased, "I am going to kill you." The deceased replied, "Well, you are going to kill me anyhow; go on and kill me." Several bystanders begged the defendant not to cut the deceased, but he "raked him once, " and then grabbed hold of the shoulder of the deceased and cut his throat. The defendant made a statement in which he said that the deceased hit him on the shoulder with a brick, that he (defendant) hit him back twice with his fist, that they clinched and fell, and that the deceased "started to pick up another brick, and I run into him and cut him." He further stated that the deceased had shot him through the leg about four months before, and that he was known to him as a man of violence who carried a pistol practically all the time.
A witness for the defendant testified that the dead man reached down and got a stone, and drew back as if to throw at the defendant, and did throw it and hit the defendant, and that when he reached back for another stone the defendant struck him with his fist, and, as the deceased raised up, struck him with the knife. There was evidence that in the quarrel which took place, five or ten minutes before the killing, the deceased told the defendant to "go on away, " and picked up a rock which might have been a little larger than a hen egg, and threw it at the defendant. The defendant introduced witnesses who testified that the deceased had a reputation for violence in the community in which he lived. Witnesses for the state testified that they did not see the deceased trying to pick up a brick, and that, on the contrary, he was not doing anything, and was standing up with his hands down, staggering, and could not support himself. The jury found the defendant guilty, without recommendation. He filed a motion for a new trial, which was overruled, and he excepted.
In the first special ground of the motion for a new trial it is complained that the court charged the jury that "provocation by words, threats menaces, or contemptuous gestures shall in no case be sufficient to free the person killing from theguilt and crime of murder"; it being contended that the charge was error in that it should not have been given without qualification to the effect that threats, menaces, etc., might be sufficient to arouse a reasonable fear in the mind of the defendant, so that the killing would be done in self-defense and thus be justifiable. A reading of the charge of the court as a whole discloses that the excerpt complained of was given in connection with the charge of the court upon the subject of voluntary manslaughter. The judge charged the jury as to certain circumstances which must appear before a felonious homicide would be reduced from murder to manslaughter. He then charged, "And then they say what won't reduce it, though, " and then followed the excerpt from the charge as to provocation by words, threats, menaces, or contemptuous gestures, followed by the remaining provisions of section 65 of the Penal Code.
It appears from the charge that the court instructed the jury upon each of the three defenses set up by the defendant—self-defense, the fears of a reasonable man, and mutual combat. The court first charged on the subject of reasonable fears, next upon the subject of self-defense, and then charged the jury "under what circumstances a homicide will be reduced, if one has been committed, without justification or excuse, " and following this appears the charge upon the general subject of manslaughter, following the terms of section 65 of the Penal Code. Immediately following this charge upon the subject of manslaughter the judge stated to the jury that there was "a third defense, entirely separate and distinct from the other two given, * * * not to be confused with the other defenses that I have outlined to you, " and charged upon the law of mutual combat, stating to the jury that this defense should not be "confused with the separate defenses of justifiable homicide and acting under the fears of a reasonable man, about which I have already charged you, as it does not limit or qualify those defenses in any respect."
It is well settled that, in charging upon the law of voluntary manslaughter as contained in section 65 of the Penal Code, it is not error for the court to fail or refuse to charge, in immediate connection therewith, as to the right of the jury to consider words, threats, or menaces in determining whether the circumstances attending the homicide were such as to justify the fears of a reasonable man that his life was in imminent danger, or that a felony was about to be committed upon his person. Deal v. State, 145 Ga. 33, 88 S. E. 573; Vernon v. State, 146 Ga. 709(3), 713, 92 S. E. 76. Indeed, it has been held to be erroneous for the court, in its charge to the jury, to mingle "the law of...
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