Jackson v. State

• Decision Date: 28 May 1943
• Docket Number: 29941.
• Citation: 26 S.E.2d 485,69 Ga.App. 707
• Parties: JACKSON v. STATE.
• Court: Georgia Court of Appeals

26 S.E.2d 485

69 Ga.App. 707

JACKSON v. STATE.

No. 29941.

Court of Appeals of Georgia, Division No. 1.

May 28, 1943

Rehearing Denied July 22, 1943.

Syllabus by the Court.

The jury were authorized to find that the accused, Chestee Jackson, along with Otis Jackson, and several others, were visiting in the home of one Bertha Lawson. While there, the accused and Otis Jackson got into a heated argument about some girl. During said argument both the accused and Otis Jackson cursed each other several times, and Otis Jackson threw a rock at the accused. Bertha Lawson, in order to stop said argument took Otis Jackson by the arm and led "him up the road and told him to go on." The accused then left the scene and went to the house were he lived with his father, Bill Jackson. Otis Jackson, a short while thereafter came into the front yard where the accused lived and started to curse the accused who was inside the house. At this time Bill Jackson came home, and hearing Otis Jackson arguing said: "I ain't going to have such doings." Otis Jackson called him a "God damned son of a bitch," whereupon Bill Jackson hit him once or twice with a plank. The accused then came out on the porch with a shotgun, and after watching the argument and fight between his father and Otis Jackson shot Otis Jackson in the leg. Otis started running out of the yard but fell in the "edge" thereof while still on the premises. One witness stated he had reached the road before he fell. Bill Jackson caught up with him and "hit him a lick or two." The accused, upon reloading the gun, left the porch, walked over to where his father and Otis Jackson were still fighting, and joined the scuffle. During the struggle for the gun between the above-mentioned combatants, the gun fired and killed Jim Lawson, a bystander who was taking no part in the scuffle. The defendant made a statement, introduced an eye witness to the homicide, and used a good character witness; however, the jury accepted the evidence supporting the State's theory in the case instead of the evidence for and statement of, the defendant, and found him guilty. This they were authorized to do.

Roberts & Roberts, of Monroe, for plaintiff in error.

D. M. Pollock, Sol. Gen., of Monroe, for defendant in error.

MACINTYRE Judge.

1. The statutory crime of "involuntary manslaughter in the commission of an unlawful act" is where the killing is unintentional while the slayer is in commission of some unlawful act. "Provided, that where such involuntary killing shall happen in the commission of an unlawful act which, in its consequences, naturally tends to destroy the life of a human being, or is committed in the prosecution *** of a crime punishable by death or confinement in the penitentiary, the offense shall be deemed and adjudged to be murder." Code, § 26-1009. If the accused, in a fight with an antagonist, kills an innocent bystander under such circumstances as would render it involuntary manslaughter in the commission of an unlawful act, the killing is of the same grade of offense as if the accused had killed his antagonist. 1 Warren on Homicide, 518, § 108.

The jury were authorized to find that an innocent bystander was shot and lost his life as the immediate result of the fight in which the accused and an antagonist were engaged; that the killing was without malice expressed or implied and without any intent to kill, but was on account of the misadventure of the discharge of a gun with which the accused entered the fight, knowing it was loaded, and over which the accused and others were struggling; that the accused was unlawfully engaged with others in a struggle in anger, and that the homicide was only a crime because of being brought about by an act, which, while unlawful, was not felonious, but only a misdemeanor. 1 Warren on Homicide 402 (65); Wharton on Homicide, 3 ed. 341, § 216; Roberson v. State, 57 Ga.App. 495, 195 S.E. 881.

2. The court properly ruled out as being irrelevant questions asked Otis Jackson by the defendant as to whether he and the bystander, Jim Lawson, had, on days previous to the fight had fights or rows, even though...