Syllabus by the Court.
Evidence
held sufficient to authorize conviction for murder.
The
evidence authorized the verdict.
Failure
to charge with reference to fears of reasonable man
held not error, where defendant claimed he killed
deceased in defense of his life (Pen. Code 1910, § 71).
Under
the evidence in the case the court did not err in failing to
give in charge to the jury Penal Code 1910, § 71, with
reference to the fears of a reasonable man, etc.
Code
referring to necessary killing in self-defense applies only
to case of mutual combat, and need not be charged in absence
of evidence of mutual combat (Pen. Code 1910, § 73).
Section
73 of the Penal Code of 1910 is applicable only to a case of
mutual combat; and where there is no evidence tending to show
that at the time of the homicide the deceased and the
defendant were engaged in mutual combat, it is not error to
fail to give that section in charge.
The
court did not err in overruling the motion for a new trial.
Error
from Superior Court, Chatham County; Peter W. Meldrim, Judge.
Joe
Jones was convicted for murder, and he brings error.
Affirmed.
Failure
to charge with reference to fears of reasonable man held not
error, where defendant claimed he killed deceased in defense
of his life (Pen.Code 1910, § 71).
Joe
Jones was indicted for murder in killing Levi Wise by
stabbing him with a knife. The defendant was convicted, with
a recommendation to mercy; and he was sentenced to life
imprisonment in the penitentiary. He made a motion for new
trial, which was overruled, and he excepted.
On the
trial Ortholia Brooks, a witness for the state, testified
"I am the dead man's, Levi Wise's, sister. I
know Joe Jones, there he is [pointing to defendant]. On the
night of May 20, 1930, I saw a bright looking fellow go
towards my brother. I don't know whether it was him or
not. It was on Charles Street before the killing occurred.
George Hardwick called Levi. Levi went up to him and they
talked a while, and I went back to the house, and he went
across the street; that is Levi did. Levi and another fellow
was standing at the alley, they stopped and talked. I went to
see what they were talking about; they were talking, not
fussing. I went on to the house and undressed to go to bed. I
heard a noise, looked out the room window, and saw Levi
getting up from the ground, and he walked into the alley, and
this man with a blue suit and light straw hat followed him.
He was a light-skinned man. Levi kept backing; he would look
behind, and then would back. I know where
West Broad and Charles Streets are. This alley is on the
right-hand side of West Broad; the alley is about this wide
and not quite a block long. I don't know what happened in
the alley, but seemed like somebody caught him around the
neck and pulled him in the alley; and this man with the blue
suit, he pushed him in there. I could not say whether the man
with him or the other man pushed him in there. I can not say
who he was. I called my husband and said, 'Come on, Joe.
I think they are trying to kill my brother.' I went out
and found Levi lying on his face. He was dead. The laundry
boy turned him, and I saw blood and left. I fainted, and they
took me to my house. I did not get close enough to see any
weapon. I saw Jones in police court. The man I saw go in
there had a blue suit and a light straw hat. Jones had on a
blue suit in police court. I could not tell whether it was
the same suit or not."
Edward
Moring, for the state, testified: "I work for the E. & W. Laundry. I don't know Levi Wise personally, but saw
him the night of the killing. I know Joe Jones when I see
him. There he is [pointing to defendant]. On May 20, 1930, I
was on Charles Street that night. I heard fussing up the
street about where I was. I saw some one pushed off the
stoop; that was Levi Wise. After a while I saw this fellow
walk behind Levi Wise. Levi Wise walked in the alleyway, and
this other fellow walked in behind him, and in about three
minutes he came out and shook his hand this way, and I saw
blood on him. This man here; he walked to Broad Street. I
went and saw the dead man. His sister came there. I got a
flashlight and went to the dead man; he was lying on his
face. I turned him over on his back, and there was a knife
lying right underneath, a small knife, I stood over him until
officer Gary came. I saw blood on his shirt. I was the first
one to actually touch the dead man. This is the knife I found
there. Looks like blood on the handle and blade. I found this
knife right underneath the dead man. No, he was not dead
then, but made one long blow and died in about a second after
that. This alley was in Chatham County, Georgia. No light in
the alleyway. I had a flashlight. Yes, this is the man. He
walked towards West Broad when he came from the alley. It is
about a block and a half from West Broad to that alley. He
had blood on his fingers, and he was working them like this
I could see the blood. This man was arrested in about an
hour's time. I did not see him after he was arrested, but
saw him in police court. I did not identify him there, for
they did not ask me if I knew him; but I knew him."
Hallie
Singleton, for the state, testified: "I know Levi Wise.
I am not related to him or to his wife. I met Joe Jones the
night Levi Wise was killed. Levi Wise was in Bessie
McKee's house. He come out, and somebody pushed him off
the stoop, and he fell and knocked his hand and said
something to Bessie, and walked to the lane. Joe Jones
followed him into the lane or alley. The alley leads to
Huntingdon Street from Charles. Joe Jones stayed in the alley
about three minutes, and when he passed me he was shaking his
hand like this, and blood was on his hand. I said, 'That
man has killed some one.' I did not go in the alley. Joe
Jones went down Charles Street to West Broad after that. ***
There is Joe Jones [pointing to defendant]. He was arrested
about 10 or 11 o'clock. I identified him at that time,
the city policeman, Mr. Mitchell, had him. I identified him
again in the police court."
Hattie
Cooper, for the state, testified: "I remember the night
Levi Wise was killed. Levi Wise and his wife were in Bessie
McKee's house at about 2 o'clock in the afternoon.
They were fighting. No, Joe Jones had nothing to do with the
fighting. Levi Wise told Bessie to put his wife out, and she
would not. Bessie McKee and Levi went to fighting, and she
put Levi out. Levi came back at 6 o'clock, and they were
in the kitchen fighting again. Joe Jones did not tell Levi
anything, but said he was going to kill Levi before the sun
went down." On redirect examination she testified:
"I heard that Bessie McKee's house is a house of
prostitution. Levi Wise went there to get his wife. Joe Jones
objected to Levi taking his wife from that house. They were
the cause of all the trouble."
Freddie
Bostwick, for the state, testified: "I know Levi Wise,
but I did not see the killing. I was standing on the corner.
I asked the police what was the matter. They said this man
Levi got killed. This boy Jones walked up to the stoop where
I was standing, and said: 'Is Levi dead?' I told him
'yes.' He walked off and said, 'I am gone; none
of you all seen me.' I was very close to Jones when I had
this conversation with him. He had on a blue coat, and it was
not cut. There was nothing wrong with it at that time."
Steve
Kirkland, for the state, testified: "I don't know
Joe Jones, and wouldn't know him if I saw him. Yes, I see
him, but I don't know his name. I heard about the killing
of Levi Wise. I was on 36th and Florence when I heard about
the killing. I drive a taxicab. On my way back to the station
I stopped at Charlton and West Broad. I met Freddy Bostwick
on Charlton and West Broad after the killing. Me and Freddy
and a woman was sitting on a stoop. This [defendant] came and
struck me on the back. I looked around, and it was this
fellow here. He said: 'Is Levi dead?' I said: 'He
is lying
up in that alley stiff.' He walked away and said:
'You aint seen me.' He went on down. This man had a
dark suit of clothes on, and a light hat in his hand. He had
on a coat. I did not see any cut at all on his coat at that
time, when he was speaking to me."
The
defendant made the following statement to the jury
"Judge, to your Honor, and gentlemen of the jury: I am
charged with killing Levi...
