Lamp v. State

• Decision Date: 12 April 1927
• Docket Number: 5736.
• Citation: 137 S.E. 765,164 Ga. 57
• Parties: LAMP v. STATE.
• Court: Georgia Supreme Court

137 S.E. 765

164 Ga. 57

LAMP v. STATE.

No. 5736.

Supreme Court of Georgia

April 12, 1927

Syllabus by the Court.

On the trial of one indicted for murder, it is error to charge section 73 of the Penal Code of 1910, which is applicable only to a case of mutual combat, when there is neither evidence nor statement of the defendant tending to show that at the time of the homicide the deceased and the defendant were engaged in a mutual combat. There is no evidence in the present case to authorize such charge.

There is no substantial merit in the other assignments of error on the excerpts from the charge of the court and the refusal to charge.

As the judgment is reversed on account of the charge set out in the opinion, no opinion is expressed as to the sufficiency of the evidence to support the verdict.

The judge erred in refusing a new trial.

Error from Superior Court, Johnson County; R. Earl Camp, Judge.

Sidney Lamp was convicted of murder, and he brings error. Reversed.

E. L Stephens, of Dublin, and C. S. Claxton, of Wrightsville, for plaintiff in error.

Fred Kea, Sol. Gen., of Dublin, Geo. M. Napier, Atty. Gen., and T R. Gress, Asst. Atty. Gen., for the State.

HILL J.

Sidney Lamp was indicted and tried for the murder of Clifton Powell by shooting him with a pistol. The jury returned a verdict of guilty, with a recommendation to the mercy of the court, and he was accordingly sentenced to the penitentiary for life. He filed a motion for new trial on the usual general grounds and five special grounds, which motion was overruled, and he excepted.

Ground 2 of the amended motion for new trial complains of the following charge of the court:

"Mutual combat is a mutual purpose or intent on the part of the parties engaged to fight. It is a question for the jury to determine under all the facts and circumstances of the case. including the defendant's statement, whether such mutual intention to fight existed or not. The court charges you that, in case of mutual combat, if a person kill another in his defense, it must appear that the danger was so urgent and pressing at the time of the killing that, in order to save his own life, the killing of the other was absolutely necessary, and it must appear, also, that the person killed was the assailant, or that the slayer had really and in good faith endeavored to decline any further struggle before the mortal blow was given. Before the slayer can be justified, it must appear that he acted without malice, not in a spirit of revenge, that the deceased was the assailant, that in order to save his own life it was necessary to kill his adversary or that he was under the pressure of other equivalent circumstances. He cannot avoid the fearful responsibility by the bare fear or apprehension of danger; the danger must be urgent and pressing at

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