Horton v. State

• Decision Date: 08 June 1904
• Citation: 120 Ga. 307,47 S.E. 969
• Parties: HORTON . v. STATE.
• Court: Georgia Supreme Court

47 S.E. 969

120 Ga. 307

HORTON .

v.STATE.

Supreme Court of Georgia.

June 8, 1904.

APPEAL—WAIVER OF ERROR—MANSLAUGHTER-INSTRUCTIONS.

1. A party cannot obtain a reversal for an error which he has invited, as by a request to charge, or by formal admission that a given principal was not involved in the case.

2. But the fact that one of defendant's counsel, in arguing to the jury, insisted "that there was no manslaughter in the case, but that it was a case of self-defense, and another of his counsel contended that the defendant was justifiable because of the invasion of his house, " did not deprive the defendant of the right to a charge on the subject of manslaughter, if it was otherwise demanded by the evidence.

3. The evidence which warranted the charge on the subject of self-defense also called for an instruction on the law of manslaughter as contained in Pen. Code 1895, § 05.

Candler, J., dissenting. (Syllabus by the Court.)

Error from Superior Court, Paulding County; A. L. Bartlett, Judge.

Will Horton was convicted of murder, and brings error. Reversed.

Horton was indicted for the murder of Pearson. It appeared that Pearson had been drinking, and went with his wife to the house of Horton, and sent for a bottle of liquor; that Horton took a drink; and that Pearson took several, and finally lay on the bed. According to the testimony of Mrs. Pearson, wife of the deceased, Horton was seated in a chair, apparently asleep. Pearson, in a sort of stupor, rose from the bed, inquiring who had a gun drawn on him. Horton told him to hush, got up from the chair, and, without further cause, took a pistol from its place on the wall and made an attempt to shoot. Thereupon Mrs. Pearson ran between the two men and attempted to get her husband out of the door. Seeing that she could not get him out of the house, she pushed him on the floor. He fell' against the baseboard, with his head slightly raised, and, while he was thus lying, Horton fired; the bullet, according to the testimony of a physician, entering the right side of the neck, and ranging down diagonally in the direction of the left hip. Mrs. Pearson, the sole eyewitness, insisted that Mrs. Horton had rushed out of the house, screaming for help, at the time the trouble began. The accused, in his statement, said that he and Pearson had had some difference about a purchase, in consequence of which Pearson had been quite abusive, and that, when he (the accused) was returning home that evening, he proposed to one Jackson, who was with him, that, in order to avoid a difficulty, they should not pass the house where Pearson was. This statement was supported by the testimony of Jackson and of a brother of Pearson. The defendant, in his statement, further claimed that when Pearson came to Horton's house he was drinking and abusive, and finally picked up a chair, and, in a stooping and threatening position, advanced upon Horton, who claimed that he shot in order to protect and save himself. A physician testified that the range of the bullet in Pearson's body could have been produced by a shot fired at a man approaching in a stooping position. There was evidence from several witnesses to the effect that Horton at once proceeded to the county seat, and was waiting at the jail to surrender himself to the sheriff; that he stated to several persons that he had killed Pearson "because he was coming at him with a chair, " in self-defense, and "because Pearson was trying to run over him." Several witnesses testified that, without indicating by whom it was to be done, Pearson, during the day he was killed, had said he expected to be "killed with his shoes on." Mrs. Pearson testified that she would not be certain whether her husband had touched Horton or not; that, if so, it was not done violently. In another place she said: "My husband did not curse Horton. If he touched him at all, it was not very roughly." Several witnesses testified that Mrs. PearsoD had said that, when it first began, she thought it would be a knockout, until Joe got a chair and Horton got the pistol." This she denied, but she admitted that she said she thought that at first it was "only a bluff." A verdict of guilty of murder, with recommendation to mercy, having been returned, the defendant made a motion for a new trial on the general grounds, and because the court allowed the wife of the deceased to testify without allowing the wife of the accused the same privilege; because the court failed to charge on' the subject of the credibility of witnesses; and because, after the witnesses had been put under the rule, the court allowed Mrs. Pearson to testify a second time, after she had heard the evidence of the witnesses and the defendant's statement. The court charged on the subject of defense of person and habitation, justifiable homicide, and the fears of a reasonable man. The defendant assigns as error that he failed to charge on the...