Jenkins v. State, 34170

• Decision Date: 23 September 1952
• Docket Number: No. 2,No. 34170,34170,2
• Citation: 72 S.E.2d 541,86 Ga.App. 800
• Parties: JENKINS v. STATE
• Court: Georgia Court of Appeals

Page 541

72 S.E.2d 541

86 Ga.App. 800

JENKINS v. STATE.

No. 34170.

Court of Appeals of Georgia, Division No. 2.

Sept. 23, 1952.

Syllabus by the Court.

From the evidence and the defendant's statement the jury was authorized to find that the defendant killed Hannah, the deceased, with no intention to do so, in the commission of a lawful act without due caution and circumspection, and the trial court erred in failing to charge this aspect of the law of involuntary manslaughter.

J. D. Godfrey, Casey Thigpen, Sandersville, for plaintiff in error.

W. H. Lanier, Sol. Gen., Metter, E. T. Averett, Sandersville, for defendant in error.

CARLISLE, Justice.

The defendant, Talmadge Jenkins, was indicted for the murder of Charles Hannah. Upon his trial he was convicted of voluntary manslaughter and sentenced to serve from fifteen to twenty years in the penitentiary. His motion for a new trial, based upon the usual general grounds and six special grounds, was overruled and he excepted.

The indictment charged that the defendant committed the murder by hitting and beating Charles Hannah with 'a certain pine board.' From the evidence adduced upon the trial it appears that the defendant, in one automobile, followed by a brother, or brothers, in a second automobile, was driving along a road in Washington County, following a tractor driven by James Braswell, an employee of Mrs. Layton. Just as Braswell turned the tractor into the entrance of the Layton property, the automobile driven by the defendant and the automobile driven by one of the defendant's brothers collided. Without stopping, Braswell drove the tractor on to the shed where it was kept and was storing it for the night when he was accosted by the defendant and his brothers who accused Braswell of having caused their automobiles to collide. The defendant's two brothers did most of the talking to Braswell, who suggested that they take the matter up with his 'boss lady,' Mrs. Layton. As they proceeded to Mrs. Layton's house, a short distance from the tractor shed, one of the defendant's brothers, not the defendant, struck at Braswell with a knife, as Braswell steadfastly denied any responsibility for the damage to the automobiles. Upon reaching Mrs. Layton's house, the defendant, his brothers, and Braswell, all colored men, entered Mrs. Layton's kitchen, where the defendant's brothers were still adamant in their contention that Braswell had caused the damage to their automobile and that he should be made to pay for it. Mrs. Layton ordered the defendant and his brothers to leave her house and instructed them to get 'the law' to settle the matter. The defendant, who had not said a 'cross word' to Braswell asked him to come out to the automobiles and inspect the damage. At this point Charles Hannah, an aged colored employee of Mrs. Layton, arrived and began to scold the defendant and his brothers for accusing Braswell of causing the damage, as he, Hannah had seen the entire occurrence and Braswell was not to blame. Hannah also scolded the defendant and his brothers for disturbing Mrs. Layton, a white lady who had been very ill. As the defendant, Braswell, and Hannah, stopped to inspect the damage which had been done to the grill work of one of the automobiles, the two brothers of the defendant drove the second automobile away, leaving the defendant, Braswell, and Hannah together at the other automobile. As Braswell stooped to inspect the automobile Hannah and the defendant continued to talk to each other, but Braswell, the only other person present, could not hear what was being said, and just at that point Mrs. Layton called to Braswell to come to the house. As Braswell proceeded to the house, he looked back, saw the defendant with a scantling, or pine board, in his hand with his arm drawn back and Hannah had one of his arms raised in the air, and called to Mrs. Layton that 'they are fixing to kill Uncle Charlie [Hannah].' Braswell did not see the defendant strike Hannah, nor hear the blow, but saw Hannah fall and saw the defendant throw the board down and depart. On cross-examination, Braswell also testified that Hannah said, just prior to the blow delivered by the defendant, 'Don't you do it.' Braswell also testified that Hannah fell to the ground and never spoke again, that he, Braswell, found an open knife and Hannah's glasses lying on the ground near Hannah, who was bleeding from the nose and from an injury on the side of his head. Another witness, Freddie Daniel, who arrived shortly after the altercation between the defendant and Hannah, testified that he met the defendant leaving the scene and that though he did not understand the significance of the remark, the defendant had said to him, 'I got your man.' This witness also testified that an open knife was found on the ground near Hannah and that he knew it to be Hannah's knife. The sheriff of the county testified that when he arrived at the scene Hannah was still lying on the ground unconscious, and that he had been hit on the head with some kind of instrument; that he found at the scene a pine board which had been freshly broken in two; that the board had been about three feet, ten inches in length, about three-and-one-half inches wide, about three-quarters of inch thick; that the board contained more heart, or fat lightwood...