Mathis v. State

• Decision Date: 07 July 1943
• Docket Number: 14585.
• Citation: 26 S.E.2d 606,196 Ga. 288
• Parties: MATHIS v. STATE.
• Court: Georgia Supreme Court

26 S.E.2d 606

196 Ga. 288

MATHIS v. STATE.

No. 14585.

Supreme Court of Georgia

July 7, 1943

Syllabus by the Court.

1. An essential ingredient of mutual combat is a mutual intention to fight; but where all of the evidence, including the defendant's statement, shows no agreement or mutual intention, that the defendant was armed with a loaded shotgun, and that the deceased was not armed, had made no threats, and was making no effort to feloniously assault the defendant, mutual combat was not involved; and the judge did not err in omitting to instruct the jury on this theory of voluntary manslaughter.

2. Where the verdict is supported by the evidence, the general grounds of the motion for new trial challenging the sufficiency of the evidence to warrant the verdict are without merit.

Tommie Lee Mathis was indicted, tried, and convicted of the murder of Albert Nash, without recommendation, and was sentenced to be electrocuted. He excepted to the overruling of his motion for new trial consisting of the general grounds and one ground complaining because the court failed to instruct the jury on the law of voluntary manslaughter as based upon the theory of mutual combat. The State's evidence in substance showed that on or about December 10, 1942, the defendant and the deceased met at a lunch place operated by Reuben Stanley; that the defendant had three 'ace highs' one of which he traded to Stanley for a fish sandwich, and set the others on a counter or table; that thereafter the defendant complained that someone had taken one of his 'ace highs,' and accused Albert Nash, who denied the accusation; that the defendant assaulted Nash holding him in the collar with his right hand and having a switch-blade knife in his left, and saying that he would cut his 'damn head off.' Stanley thereupon ordered them out of his place of business, and they went out the defendant holding Nash in the collar and threatening to kill him. At the suggestion of Bennie Roy Ector the defendant turned loose the deceased, and then both went to their homes which were nearby. Susie Nash, wife of Albert, testified that when he arrived at home she requested him to go with her to the lunch room to get a sandwich. Upon arriving at the lunch stand, Nash stood on the outside, and shortly the defendant while approaching the stand with the shotgun discharged the gun once and then proceeded towards the lunch stand where Nash was standing. Nash advanced towards the defendant, with his hands up, and said: 'Tommie Lee, don't shoot me. Me and you are good friends.' The defendant then shot Nash with the gun, and he fell to the ground and died. Nash had no weapon of any kind. Some of the evidence showed that while standing by the lunch place, Nash had his hands in his pockets, and his wife testified that she asked him to run when the defendant was approaching with his gun, and he refused.

The defendant made a statement which agreed with the State's evidence as to the first meeting at the lunch stand, except that he stated that Nash picked up a stool and manifested an intention to strike him with it, that Bennie Roy Ector made a statement or threat against the defendant after he and Nash went into the yard; whereupon the defendant ran and went home. He stated that he obtained his gun at his home and was going back to the lunch stand to get a pair of pants that he had previously left there; that on his way he accidentally discharged the gun, then reloaded it, and as he was approaching he heard the wife of Nash say, 'Albert, come on and let's go home,' and that Nash replied: 'No, you see that boy with that gun? I don't give a damn, the black son of a bitch can't do nothing but shoot.' That Nash had something in his hand that looked like a razor; that he then started towards the defendant with his hands in his pockets; that the defendant backed and Nash continued and the defendant shot him. The defendant then went in the lunch stand and got his pants. He went behind 'Miss Lizzie's house.' He saw the wife of Nash kneel down by him. Nash still had his hands in his pockets, and some one told her not to touch him until the police came, and some one else said, 'It is this woman's husband.' Bennie Roy Ector told the policemen he would show them where the defendant went. The defendant just ran across the road where they would not see him. He was in the back yard at home when the officers went in, and he went in there. He stated that Nash did not have his hands up as testified by the State's witnesses; that Nash was cursing him, and had both hands in his pockets when he fell; and that his wife took his hands out of his pockets and got something out.

The State's witness, Garfield Ray, testified that Albert Nash had nothing in his hands, was doing nothing to the defendant and was not trying to do anything to him at the time he shot Nash. Ray did not see the wife of Nash go to the body after he fell. He saw her leave the place. He knew Johnnie Ray, who is his uncle; he visited him in the jail where he and the defendant were together; he did not talk to the uncle about this case, but the uncle asked him to be as light on the defendant as he could, and he replied that he was going to tell the truth; and he did not tell his uncle and the defendant that Nash's wife went to the body of her husband after he fell, got...