Mcmullen v. State, 22010.

• Decision Date: 01 September 1932
• Docket Number: No. 22010.,22010.
• Citation: 165 S.E. 479,45 Ga.App. 532
• Parties: McMULLEN. v. STATE.
• Court: Georgia Court of Appeals

45 Ga.App. 532

165 S.E. 479

McMULLEN.

v.STATE.

No. 22010.

Court of Appeals of Georgia,

Division No. 1.

Sept. 1, 1932.

Syllabus by the Court.

The evidence supports the verdict, and the grounds of the motion for a new trial disclose no reversible error.

Error from Superior Court, Miller County; C. W. Worrill, Judge.

Joe Taylor McMullen was convicted of voluntary manslaughter, and he brings error.

Affirmed.

W. I. Geer and P. Z. Geer, both of Colquitt, for plaintiff in error.

B. T. Castellow, Sol. Gen., of Cuthbert, and Bond Almand, of Atlanta, for the State.

LUKE, J.

Joe Taylor McMullen was charged with committing murder on May 2, 1930, in Miller county, by stabbing John Bell with a knife. The jury found the defendant guilty of voluntary manslaughter. He excepts to the judgment overruling his motion for a new trial as amended.

That the defendant killed John Bell in Miller county on the afternoon of May 2, 1930, by cutting him in the neck with a knife, was proved by the state, and not denied by the defendant. It also appears from the record that the defendant and John Bell had a previous personal difficulty on the morning of the homicide, and that both parties had been drinking before the fatal rencounter, but whether either of them was drunk, or which was more intoxicated than the other, are questions about which the witnesses differ.

Douglas Roberts, sworn for the state, testified in part as follows: "I saw John Bell first in the evening about four or five o'clock * * * coming up the road. * * * He * * * was walking. Brewster McMullen was with me. He is an uncle of Joe Taylor McMullen. * * * Me and Brewster McMullen were walking meeting John Bell. John Bell walked in about twenty feet, and stuck his hand in his bosom and said, 'You all stop, ' * * * and I went walking up close to John Bell, and he begun telling me about a row. * * * We were standing there talking, and Joe Taylor McMullen and George McMullen and Roy McMullen walked up; and Joe McMullen walked around and laid his hand on my shoulder, and Joe McMullen walked around me, and John Bell backed and said, 'Boys, God damn you, say that again.' He doubled up his fists, and Joe Taylor McMullen and George doubled up their fists, and John Bell and Joe Taylor McMullen went together. They run together and went to fighting. Each one run into the other. John Bell had his fists, and Joe Taylor McMullen had his knife, and I run in between them and told Brewster McMullen to come and help me get them apart, and John Bell come over this shoulder of mine and hit Joe Taylor McMullen; and George said, 'Cut him;' and I said, 'I would not cut him;' but he did cut him. John Bell had no weapon at the time Joe Taylor McMullen cut him. I got the stick out of his hand. * * * When Joe Taylor McMullen cut John Bell, he struck him around my left shoulder. He cut John Bell in the hollow of the neck, about the collar-bone."

On cross-examination Douglas Roberts swore in part: "He [John Bell] had his fist doubled up. * * * George McMullen had a stick, and drawed it back and said, 'You see that, don't you?' and I went in between * * * Joe Taylor •McMullen and John Bell. John Bell hit the first lick in that difficulty with a stick about two inches around and two feet long. You could kill a man with it. * * * John Bell was a stout man, * * * about fifty pounds heavier than Joe Taylor McMullen."

In the main the defendant's evidence is, in effect, that John Bell was drunk; that he had cursed and tried to start trouble earlier in the day with the McMullens; and that John Bell struck the defendant with his fist, and was advancing on him with a heavy stick when the defendant cut in self-defense.

The defendant's statement in full was as follows: "Well, gentlemen, I had to do what I did to protect myself. I thought he was going to kill me or injure me with that stick, and I did what I did to protect myself."

We have not undertaken to set out all the evidence adduced at the trial, but we think it clearly appears from the evidence that this is not a case where there could have been no legal verdict except "guilty" or "not guilty" of murder. We are satisfied that voluntary manslaughter was involved in the case, and that the evidence abundantly supports the verdict finding the defendant guilty of that offense. We therefore hold that there is no merit in the general grounds of the motion for a new trial.

The assignment in special ground 1 that the court erred in charging the law of voluntary manslaughter, for the reason the defendant "was guilty of murder or guilty of nothing, " is not meritorious. The assignment that the charge was improperly given because "voluntary manslaughter was not involved in the case" is in effect the same as the assignment first mentioned. There is no merit in it. Neither did the court commit reversible error while charging upon voluntary manslaughter in including in the charge that part of section 65 of the Penal Code 1910, which reads as follows: "Provocation by words, threats, menaces, or contemptuous gestures shall in no case be sufficient to free the person killing from the guilt and crime of murder."

Special ground 2 avers that the court erred in charging the law of mutual combat, because there was no evidence to authorize it, and because the charge given was "confusing and misleading to the jury." The ev-idence warranted the charge, and there is no merit in the ground.

In special ground 3 complaint is made of the following charge: "Justifiable homicide, as applicable to the issues involved in this case, means killing in self-defense, or in defense of person against one who manifestly intends or endeavors, by violence or surprise, to commit a felony on his person. A bare fear of any of those offenses to prevent which the homicide is alleged to have been committed shall not be sufficient to justify...