James v. State

• Decision Date: 25 April 1942
• Docket Number: 29540.
• Parties: JAMES v. STATE.
• Court: Georgia Court of Appeals

20 S.E.2d 87

67 Ga.App. 300

JAMES v. STATE.

No. 29540.

Court of Appeals of Georgia, Division No. 1.

April 25, 1942

H A. Allen and Gertrude Harris, both of Atlanta, for plaintiff in error.

John A. Boykin, Sol. Gen., Durwood T. Pye, and Daniel Duke, all of Atlanta, for defendant in error.

GARDNER Judge.

The defendant was tried for murder and convicted of voluntary manslaughter. He filed a motion for new trial on the general grounds and thereafter added two special grounds. The motion was overruled and he excepted, contending that the verdict was unauthorized for reasons stated in the general grounds as well as in the special grounds. We will first deal with the special grounds in their reverse order, and will mention the evidence generally as it applies to each division of the contentions of the defendant.

1. The defendant introduced a number of witnesses as to his general good character, as well as his good character for peaceableness. He made no request to charge the law applicable to such evidence. However, the court did charge the law fully with reference to the effect of evidence as to general good character, but did not specifically charge as to the good character of the defendant for peace or for violence. In the absence of a written request, the court did not err in failing to charge on this evidence. O'Bryant v. State, 37 Ga.App. 827(2), 142 S.E 306. We think the effect of the court's charge included the good character as to peaceableness. There is no merit in this contention.

2. The other special ground complains that the court erred in charging the law of voluntary manslaughter. The evidence showed that the deceased and the defendant lived in houses located close to each other, having only a few feet distance between them; that about nine o'clock in the morning the deceased went from the back entrance of his house into the space between the two houses, toward the front; that the defendant raised the shade of his own window and fired from the window with a shotgun, inflicting 105 pellet wounds on the person of the deceased. The deceased immediately fell to the ground. The wife of the deceased went to him, being attracted by the gunshot and the outcries of the deceased. The defendant came from his own house with a shotgun, pointed the gun at the deceased, and stated that he had a great mind to kill him. Shortly thereafter the deceased was taken to the hospital, from which place he was removed the next day dead. The deceased, before he died, upon being questioned as to why the defendant had shot him, stated that he did not know, that he had had no words with the defendant and did not see him. The defendant introduced a number of witnesses who testified to the effect that the deceased had for some time carried on illicit relations with the wife of the defendant. There was also evidence to the effect that on the night immediately before the homicide the wife of the defendant was not at home.

The defendant made the following statement: "I was told of it and I asked my wife about it, and she said yes, he had been going with her but she told him to stay away, and he would not; and I told him to stay away twice and he continued to come back. Well, a couple of weeks after then he came down there and called her, they told me, and shot out there in my yard five times. The night before the killing was did, he came back down there about one o'clock, and he pulled at the screen, and I went to the window to see who it was, and he ran away back to his house. Next morning when I got up he came back down there again, knocked at the window and called my wife, said he had something for her; and I went to the window first and went and got my gun and came back and pulled the shade up, and he had his hands on the window, and he stepped back two or three steps and I did shoot him, and he backed up two or three more steps and started back to his back porch, and I went out around there where he was at. He said, 'Please, don't shoot me no more, I will never bother you no more, I will never give you no more trouble.' His wife came from down the street and came down there where he was at, and I went on in the house and put up the gun then and left."

The defendant contends that under this special ground the record of the evidence does not involve the question of the principle of voluntary manslaughter in a heat of passion that the defendant was either justified, under the evidence and the defendant's statement, or was guilty of murder. He cites in support of this contention. Stevens v State, 137 Ga. 520, 73 S.E. 737, 38 L.R.A.,N.S., 99; Cyrus v. State, 102 Ga. 616, 29 S.E. 917; Kelly v. State, 145 Ga. 210, 212, 88 S.E. 822; Tolbirt v. State, 119 Ga. 970, 47 S.E....