Lightsy v. State

• Decision Date: 08 August 1907
• Docket Number: (No. 607.)
• Citation: 58 S.E. 686,2 Ga. App. 442
• Court: Georgia Court of Appeals
• Parties: LIGHTSY. v. STATE.

58 S.E. 686

(2 Ga. App. 442)

LIGHTSY.

v.STATE.

(No. 607.)

Court of Appeals of Georgia.

Aug. 8, 1907.

1. Homicide — Instructions — Justifiable Homicide.

This case is controlled by repeated rulings, of the Supreme Court that the law embraced in Pen. Code 1895, § 73, does not qualify or limit the law of justifiable homicide as contained in sections 70 and 71, and that instructions as to these two separate branches of the law of justifiable homicide should not be so given as to confuse the one with the other, to tend to perplex the jury in making appropriate application of the law to the facts.

2. Criminal Law—Instructions—On Matter Not Supported by Evidence.

In no view of the evidence or the statement of the accused was the law of justifiable homicide as laid down in Pen. Code 1895, § 73, applicable to this case, and the court erred in giving in charge that section.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 26. Homicide, § 622.]

3. Same.

In a homicide case, where the evidence and the statement of the accused present only the conflicting theories of murder or justifiable homicide, it is error for the court to give in charge the law of voluntary manslaughter, and a verdict against the accused for that offense should be set aside.

4. Error, Writ of—Review.

The other assignments of error are without merit (Syllabus by the Court.)

Error from Superior Court, Chattooga County; A. W. Fife, Judge.

Bob Lightsy was convicted of voluntary manslaughter, and he brings error. Reversed.

J. M. Bellah, F. W. Copeland, and W. M. Henry, for plaintiff in error.

W. H. Ennis, Sol. Gen., for the State.

HILL, C. J. Bob Lightsy was tried for murder, and convicted of voluntary manslaughter, in the superior court of Chattooga county. He made a motion for a new trial, which was overruled. We find three of the grounds meritorious.

1. Under the evidence and the defendant's statement, the court erred in giving in charge section 73 of the Penal Code of 1895. The Supreme Court has repeatedly ruled that this section should never be given in charge, unless there is some evidence tending to show that there was a mutual combat between the accused and the deceased, or an agreement between the parties indicating a mutual intent to fight Among the many cases expressly so ruling, we cite Powell v. State, 101 Ga. 9, 29 S. E. 309, 65 Am. St. Rep. 277, where Mr. Justice Little elaborately treats the subject of justifiable homicide under Pen. Code 1895, §§ 70, 71, 73, pointing out clearly when either or all of these sections would be applicable and when not. See, also, Stubbs v. State, 110 Ga. 916, 36 S. E. 200; Wheeler v. State, 112 Ga. 43, 37 S. E. 126; Freeman v. State, 112 Ga. 48, 37 S. E. 172; Heard v State, 114 Ga. 90, 39 S. E. 909; Jordan v. State, 117 Ga. 405, 43 S. E. 747. In this case there was no witness to the act of killing. The accused, by his statement, put his defense squarely on Pen. Code 1895, §§ 70, 71. The evidence in behalf of the accused strengthened the position of self-defense made by the statement, and neither by the evidence nor the statement was there any fact or circumstance tending to show any mutual combat or any agreement evidencing a mutual intention to fight. The theory of the state was that the accused, after the quarrel with the deceased, threatened to kill him, armed himself, sought and found him, and without any real or apparent danger shot him as soon as he saw him. It is not necessary to give in detail the evidence of the state and the accused, or to attempt to evolve the truth from these conflicting theories. That is a problem for the jury. It is sufficient to state generally that under neither theory was the law ofmutual combat as defined by Pen. Code 1895, § 73, in any respect applicable. The evidence both for the state and the accused, including the defendant's statement, made a case of murder or justifiable homicide under Pen. Code 1895, §§ 70, 71. Nevertheless, the court, after giving to the jury a charge covering the code definitions of murder and voluntary manslaughter, further instructed them as follows on the subject of justifiable homicide: "Justifiable homicide is the killing of a human being in self-defense, or in defense of his person, as applicable to this case. A bare fear of any of these offenses to prevent which the homicide is alleged to have been committed shall not be sufficient to justify the killing. It must appear that the circumstances were sufficient to excite the fears of a reasonable man, and that the party killing really acted under the influence of these fears, and not in a spirit of revenge." Again: "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 also appear 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...