Johnson v. State

• Decision Date: 11 November 1931
• Docket Number: 8450.
• Citation: 161 S.E. 590,173 Ga. 734
• Parties: JOHNSON v. STATE.
• Court: Georgia Supreme Court

161 S.E. 590

173 Ga. 734

JOHNSON v. STATE.

No. 8450.

Supreme Court of Georgia

November 11, 1931

Syllabus by the Court.

Requested instruction on reasonable fears as justification for homicide held properly refused for omitting to state that murder must not be committed in spirit of revenge (Pen. Code 1910, § 71).

Refusal of instruction requested does not warrant reversal, where subject-matter was covered in instructions given.

Where state's evidence made clear case of unprovoked murder and defendant's evidence tended to show self-defense refusal of charge on voluntary manslaughter as related to mutual combat held not error.

"Mutual combat" appears, as regards degree of homicide, where there is mutual intent to fight, and one or more shots are fired.

Evidence held sufficient to authorize conviction for murder.

1. A request for instruction upon reasonable fears set up by the defendant as a justification for the homicide, which omitted the principle that the killing must not be committed in a spirit of revenge, was inaccurate; and the trial judge did not err in refusing to give such instruction to the jury. Besides, a new trial should not be granted, because the law upon this subject was clearly and fully given to the jury and covered all that was correct in the request to charge upon this subject.

2. Voluntary manslaughter arising from mutual combat was not involved under the evidence in this case; and the trial judge did not err in refusing to give an instruction on this subject when so requested by the defendant. Where the evidence introduced by the state made a clear case of unprovoked murder, and the evidence introduced by the defendant and his statement tended to establish that he killed the deceased in self-defense or under the fears of a reasonable man that the deceased was about to commit a felony upon his person, the judge did not err in refusing, on request of the defendant, to give in charge to the jury the law of voluntary manslaughter as related to mutual combat.

3. The evidence authorized the verdict.

Error from Superior Court, Dougherty County; B. C. Gardner, Judge.

Major alias Slick, Johnson was convicted of murder, and he brings error.

Affirmed.

Where state's evidence made clear case of unprovoked murder, and defendant's evidence tended to show self-defense, refusal of charge on voluntary manslaughter as related to mutual combat held not error.

Johnson was indicted for the murder of Tobe Roberts. He was convicted without recommendation, and sentenced to be electrocuted. He moved for a new trial upon the general grounds; and by an amendment added two special grounds. The court overruled the motion, and the defendant excepted.

In the first special ground the defendant assigns error on the refusal of the court to give in charge to the jury a requested instruction as follows: "If you believe from the evidence in this case, including the statement of the defendant, that the deceased, immediately prior to the homicide, drew a pistol upon the defendant in a menacing manner, and if you believe, under all of the circumstances in the case, including the statement of the defendant, that such conduct of the deceased, if there were such upon the part of the deceased at the time in question, was such as to excite the fears of a reasonable man, in the situation of the defendant, that a felony was about to be committed upon him, or that his life was in danger, and that at such time the defendant acted under those fears and took the life of the deceased, then you should acquit him. Or if, under the circumstances which I have stated, you believe the defendant was actually in no danger, and that, if he had not killed the deceased, the deceased would not have committed any felony upon him or have taken his life, but if you believe that the defendant, acting under the fears of a reasonable man, believed in good faith that he was in such danger, then it would likewise be your duty to acquit the defendant. Or if, under the circumstances which I have stated, you believe that the defendant was actually in no danger, and that, if he had not killed the deceased, the deceased would not have committed any felony upon him or have taken his life, but if you believe that the defendant, acting under the fears of a reasonable man, believed in good faith that he was in such danger, or if you have a reasonable doubt resting upon your minds as to whether the defendant, acting under the fears of a reasonable man, believed in good faith that he was in such danger, then it would likewise be your duty to acquit the defendant and find him not guilty."

In the second special ground the defendant assigns error on the refusal of a request to give in charge to the jury the following instruction: "Whenever the homicide is the result of that sudden and violent heat of passion which is supposed to be irresistible and without any malice or deliberation, the killing is voluntary manslaughter, and not murder. If, upon a certain quarrel, the parties fight upon the spot, and one of them is killed, such killing is voluntary manslaughter, no matter who strikes the first blow. There need not be mutual blows to constitute a mutual combat. There must be a mutual intent to fight; and if this exists and but one blow be struck, the mutual combat exists, even though the first blow kills or disables one of the parties. If you should find from the evidence, including the defendant's statement, that the defendant and the deceased, upon a certain quarrel, each being armed with a deadly weapon, mutually engaged in mortal combat, each using his weapon and intending to kill the other therewith, then it would be your duty under such circumstances to find the defendant guilty of manslaughter."

The wife of the deceased testified in behalf of the state, and gave this account of the killing: At the time of the killing, the deceased, herself, the defendant, Evelyn Johnson, and Helen Wiley were in the room. The deceased was standing with his back to the door, facing the defendant. He had his hand on the knob of the door fixing to go out the back. The defendant was between the deceased and his wife, and was very close to the deceased. She did not see the first shot. When she looked around, her husband was falling on the bed, and the defendant was still shooting him after he hit the bed. The defendant shot twice after the deceased fell on the bed. Prior to the shooting, the deceased did not say anything at all to the defendant. Witness did not hear any one say anything, except when the deceased started out he turned and said, "I am going out in the back yard." Witness said, "Don't go out there now." The deceased replied, "Yes, I am going out in the back yard." He started to the door, and she started to the dresser. That was why her back was turned. That is all the deceased said. She then heard the defendant call, but did not know what he said. The defendant said something to the deceased that caused him to turn around. The next thing she heard were the shots.

Evelyn Johnson, who testified in behalf of the state, gave this account of the killing: She is a niece of the defendant and of the wife of the deceased, who were sister and brother. She was standing inside the door opening into the bedroom where the shooting took place. Nothing was said by the deceased or the defendant just prior to the shooting, except that the deceased said he was going out into the backyard, and he had his hand upon the knob of the door going into the kitchen. The defendant told the deceased to turn around. He turned, and the defendant shot him. The deceased fell on the bed after the defendant shot him; and, after he fell on the bed, the defendant shot him twice. The deceased had no pistol. He did not pull a pistol out in the room and say he was going to shoot everyone in the room. After the defendant ceased shooting the deceased, he ran out of the front door.

In his statement to the jury, the defendant gave this account of the homicide: He had gone up town and got a bottle full of whisky. He had not drunk any of it. He asked the wife of the deceased if he could take a lemon and egg and make her a toddy. She said, "No whiskey. I don't want to hear the name of it. My husband is killing me. He has been drinking all the week, and is drunk now." In the meantime the deceased got up and went out. He was going back there to take a drink. The wife sent Evelyn Johnson to take it away from him, and he turned it up and drank it all. Mrs. Goodman was there and saw it. The little girl went back there, and defendant thinks she slapped the deceased, and he got in a passion and slapped her and she fell on the table. The wife of the deceased jumped out of bed and tried to fight him. The defendant said, "Sister, Tobe is right. You ought to make that baby behave. She has got no business slapping a man." The deceased came over to the dresser, pulled the drawer open, and got his pistol. The defendant said: "Tobe what are you going to do with a gun. You don't need a gun. We are all friends. Nobody is going to harm you or bother you." The deceased cursed, and said, "I am damn tired of living this way. I am not going to put up with it. I am not going to stand for it." The defendant took his side, and got after his sister and told her she ought to make Evelyn mind Tobe, because he was taking care of her. She said if Tobe was not drunk, and would take a switch and whip her, she would not mind it; but that she was not going to let him beat her up when he was drunk. The defendant then said, "Well, let him go on; there is no use in quarreling with him. It will make matters no better." The defendant talked to the deceased, and he lay down across the bed. Then he said, "Sister, what are you going to do about tomorrow's...