Huff v. State, 41627

• Decision Date: 03 February 1966
• Docket Number: No. 41627,Nos. 1,3,2,41627,s. 1
• Citation: 113 Ga.App. 257,147 S.E.2d 840
• Parties: Nema Ruth HUFF v. The STATE
• Court: Georgia Court of Appeals

Page 840

147 S.E.2d 840

113 Ga.App. 257

Nema Ruth HUFF v. The STATE.

No. 41627.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Feb. 3, 1966.

Rehearing Denied March 4, 1966.

Syllabus by the Court

1. While a bedroom in a rooming or boarding house which the operator reserves

for her own use is her habitation and is a place in which she is entitled to privacy to the exclusion of others who may rent rooms and live in the house, where defense of habitation, if raised, is done solely by the defendant's unsworn statement, it is not error to fail to charge on that matter, absent an appropriate request therefor.

2. A complaint that the court failed to give some additional charge in connection with a charge given, which in and of itself was correct, shows no cause for granting a new trial.

3. It is not error to refuse a written request upon an issue not raised by the evidence or the defendant's statement.

4. Where the defendant makes as unsworn statement it is not error for the court to state in the charge giving the law applicable to unsworn statements that it was not subject to cross examination. Addition of the phrase 'in this case' cannot be construed as a proscribed comment calling attention of the jury to the law that authorized the defendant to be sworn as a witness and cross examined.

Nema Ruth Huff, indicted for the murder of Lee Franklin Bridges by shooting him with a pistol, was convicted of voluntary manslaughter. The evidence disclosed that defendant was operating a boarding house and that the deceased was one of her boarders. There was some evidence indicating that he may have had some interest with her in the operation of the house, though she denied that any business arrangement existed between them other than that he was a regular boarder. The house was a two-story one. Rooms on the second floor were generally rented. On the first floor was a living room, containing the usual furniture and a television, to which all people in the house had access. There was a dining room and kitchen, used in supplying meals for some of the boarders. There were two bedrooms with a connecting bath between. Defendant and her four-year old invalid child occupied the front bedroom, to which there was a door opening from the living room, and the deceased occupied the other.

Defendant and the deceased had been seen together a number of times at the Blue Lantern and other places where they ate, drank beer, etc. So far as was known their relationship had been cordial until the deceased became delinquent in the payment of his weekly rental, and when he was some three weeks delinquent shortly before Christmas defendant asked him to pay up or get out. The deceased was somewhat disagreeable about that, and on New Year's eve quarreled with and attacked defendant, leaving her with black and blue places over her body. On January 3 defendant went to the movies with another man, and when she came in near midnight she found the deceased asleep on the sofa in the living room with the television going. She turned the television off and he awaked, asking why the lights had been turned off. Defendant replied that she had turned off the television-not the lights. The deceased appeared to be intoxicated. He was argumentative in his attitude, saying to the defendant, 'Oh, you don't want me to watch television any more?' Defendant suggested that he go on to bed and that they would straighten the matter out the next day and went toward her bedroom, whereupon the deceased picked up his shoes from the floor and called to defendant, 'Hey, wait a minute. I want to talk with you.' In her unsworn statement defendant asserted: 'I thought he was going to throw his shoe at me, and I started walking toward my room. He followed me on to my room, to the door, and I tried to lock the door. He pushed his way on in. He did not speak after he entered my room. He turned, and walked by the side of the foot of my bed, like he was going toward the chest of drawers. I turned and opened a dresser drawer, took out a gun that I had and put it in my pocket because I figured if I could get him out of that room without any trouble, that would be the best way. So I said to him: 'Lee, please go on and leave me alone. Don't start no more trouble.' He turned around and I believe that with a backward kick very hard, closed the door before I could even, I would say, breather, and he hit me in the face very hard. My hand still being in my pocket, with my hand on the gun, I shot him in the leg. He hit me twice or possibly three times more. The next lick he hit me I went on top of the dresser. I tried to raise the gun where that I would not shoot him in the stomach and I finally, after I was almost knocked up, I finally raised the gun up. I tried to put it high enough where it would shoot him to knock him down, and not to kill him. He just turned me loose, or come loose from the way he was standing. He turned completely around. He went down on his hands and elbows onto my bed. He slid off of the bed this way and he went backward and leant his head this way.' After that she went into the hall and called Mr. Busbee, a boarder from upstairs, told him she had shot Lee and asked that he call the police.

Dr. Saffan, who saw the defendant the following day, January 4, testified that she was complaining of her nose hurting, pain about her left breast and left hip. He examined her, including the making of x-rays, and found that the bridge of her nose was broken. He saw no bruises on the breast or hip. He could not say what caused the nose to be broken, but it was his opinion that it could have resulted from a judo or karate chop directly to the nose. He could not say with certainty when the nose had been fractured, though in all probability it was recently done. She had told him she had been beaten up by a man, both on December 31 and the night before (January 3) and that she had shot the man. The x-ray showed no healing about the break, and it was his opinion that the nose was broken within a week before he saw her. It could have happened on either occasion-December 31 or January 3.

To the overruling of her amended motion for new trial defendant appeals, filing an enumeration of errors setting out four errors which correspond to the four special grounds in her amendment to the motion for new trial.

James A. Able, Jr., Atlanta, for appellant.

Lewis R. Slaton, Sol. Gen., Paul Ginsberg, J. Walter LeCraw, Atlanta, for appellee.

EBERHARDT, Judge.

1. It is contended that the court erred in failing to charge on the defendant's right of defense of her habitation, in the language of Code § 26-1013: 'If, after persuasion, remonstrance, or other gentle measures used, a forcible attack and invasion on the property or habitation of another cannot be prevented, it shall be justifiable homicide to kill the person so forcibly attacking and invading the property or habitation of another; but it must appear that such killing was absolutely necessary to prevent such attack and invasion, and that a serious injury was intended, or might accrue to the person, property, or family of the person killing.'

The State urges that the defendant's habitation consisted of the whole house-not just her bedroom, and that since the deceased was a guest in the house and already in it when the trouble arose this principle can not be applicable, relying upon Pyle v. State, 187 Ga. 156(2), 200 S.E. 667 and White v. State, 2 Ga.App. 412(1b), 58 S.E. 686. We do not agree. As the facts indicate, the defendant was operating a boarding house. Some of the rooms were rented out to the boarders, including one to the deceased. But she reserved to herself and for the use of herself and child the front bedroom. The rooms rented to others became the habitation of those to whom they were rented. Newcomb Hotel Co. v. Corbett, 27 Ga.App. 365(1), 108 S.E. 309; Byfield v. Candler, 33 Ga.App. 275(7), 125 S.E. 905. The deceased may have been a guest as to the living room, but that relationship did not extend to the defendant's bedroom. He may have had the 'run of the house' as to those portions in which all guests or boarders were permitted-the living room, dining room, kitchen, hall and perhaps the bathroom. His own bedroom was his habitation, and no other guest of the house was entitled to go there without his invitation. And so it was with the defendant's bedroom. Cf. Code § 26-2401; Jones v. State, 75 Ga. 825(2); Trice v. State, 116 Ga. 602, 42 S.E. 1008; Bacon v. State, 85 Ga.App. 630(1), 70 S.E.2d 54, reversed on other grounds in 209 Ga. 261, 71 S.E.2d 615.

But there are other reasons why failure to charge on this matter was not error. The statute applies only 'after persuasion, remonstrance, or other gentle measures used' unless the circumstances are such that there is no time or opportunity for doing so. Palmour v. State, 116 Ga. 269, 42 S.E. 512; Pyle v. State, 187 Ga. 156, 159(2), 200 S.E. 667. The deceased was not armed. 'After the verdict, the testimony is construed in its most favorable light to the prevailing party, which is, in this case, the State, for every presumption and inference is in favor of the verdict.' Wren v. State, 57 Ga.App. 641, 644, 196 S.E. 146, 148. The deceased followed the defendant to the door of her bedroom and when she tried to lock it, pushed his way on in, after having asked her to wait so that he might talk with her. After getting into the room, and before the deceased closed the door by kicking it to, defendant got a gun from the dresser drawer, placed it in her pocket and kept her hand on it. She asked the deceased to leave her alone and not start any trouble, whereupon he struck her in the face and she shot him in the leg. He struck her two or three more times, and she shot him again, this time fatally.

Can it be said that the defendant sought either by persuasion, remonstrance or other gentle measures to keep the deceased from entering her bedroom, or that she used...