Holland v. State

• Citation: 142 S.E. 739,166 Ga. 201
• Decision Date: 11 April 1928
• Docket Number: 6328.
• Parties: HOLLAND v. STATE.
• Court: Georgia Supreme Court

142 S.E. 739

166 Ga. 201

HOLLAND v. STATE.

No. 6328.

Supreme Court of Georgia

April 11, 1928

Syllabus by the Court.

The evidence in this case was insufficient to show mutual combat between the defendant and the deceased at the time of the homicide, and the omission to charge without request upon the subject of mutual combat as relating to the offense of voluntary manslaughter is without merit.

One ground of the motion for new trial complains of the charge "No mere menace, or mere threat, or mere contemptuous gesture, without more, will justify the killing of a human being." The criticism upon the charge is that it was an incorrect statement of the law of justifiable homicide as based on reasonable fears. There was no criticism on the ground that it was an incorrect statement of the law relating to voluntary manslaughter. Held, that the excerpt from the charge complained of was a part of the court's instruction upon the law of voluntary manslaughter. It was inapt to employ the word "justify," but, in the light of the subsequent instructions on the law of justifiable homicide, the inaccuracy in the charge does not furnish ground for a reversal for any reason assigned.

The evidence was sufficient to support the verdict, and there was no error in refusing a new trial.

Error from Superior Court, Bleckley County; Eschol Graham, Judge.

G. C Holland was convicted of homicide, and he brings error. Affirmed.

H. E Coates, of Hawkinsville, L. A. Whipple, of Cochran, and W. A. McClellan, of Macon, for plaintiff in error.

M. H. Boyer, Sol. Gen., of Hawkinsville, W. A. Wooten, of Eastman, Geo. M. Napier, Atty. Gen., and T. R. Gress, Asst. Gen., for the State.

ATKINSON J.

1. Complaint is made of failure to charge without written request the law of voluntary manslaughter as related to mutual combat between the defendant and the deceased. One phase of the evidence tended to show the following state of facts: The defendant was proprietor of a farm located about five miles east of the town of Cochran, upon which he resided. The deceased lived in that town west of the business section, on a street that was a projection of the road from defendant's home. The homicide occurred on the street at a point where an alley intersected the street. The alley separated Purser's beef market from the rear of the store of the McRae Hardware Company. This was on the west side of the business section of the town, but not as far west as the home of the deceased. The deceased was not an officer, but he aided officers in detection of illicit distilleries. He was called a "branch walker." Several months before the homicide the defendant ordered the deceased to cease coming upon his farm, and told him that, if he did so again, one of them would "tote a whipping."

The day before the homicide officers invaded the farm, and discovered certain beer in a wooded section belonging to tenants of the deceased. The deceased went also on the farm, and, seeing a neighbor of the defendant, informed him that he had gone on the farm, and that he expected he would have to kill the defendant. He had his shotgun at the time. This threat was communicated to the defendant in the afternoon of the same day. On the day following such threat the defendant went to town, and stopped at the above-mentioned beef market, where he was accustomed to stop, and for a considerable time engaged in friendly conversation with several persons gathered at that place. While thus engaged, the deceased and a companion came walking down the street in the direction of deceased's home. As they approached the beef market, the defendant started towards town, and met them at the intersection of the street and the alley. What then occurred was thus described by some of the witnesses: The deceased said to defendant "that he had been down on his place," to which the defendant replied, "I told you if you ever went down there again one of us would tote a whipping." The deceased then said, "I reckon not," and threw his hand back and turned sidewise to defendant, and the latter shot. Defendant shot the deceased "four times just about as fast as he could shoot a pistol; *** after the fourth shot he [deceased] staggered around and fell *** by the side door of the market." The deceased "was eight or ten feet from" defendant "at the time the fourth shot was fired, and they were both standing on the sidewalk. King [the deceased] was not doing anything."

On cross-examination, the witness testified further:

"I do not know whether King [deceased] tried to hit Holland [defendant] or not; he hit at him or something, I think, *** just threw his hand that way [indicating] and threw his other hand to his hip pocket."

Immediately after the shooting the defendant resisted arrest until he was overpowered by the officers. The deceased did not display any weapon, nor did he have one. There was other evidence relied on to show mutual combat, but...