Mell v. State

• Citation: 37 S.E. 121,112 Ga. 78
• Parties: MELL v. STATE. Syllabus by the Court.
• Decision Date: 30 October 1900
• Court: Georgia Supreme Court

37 S.E. 121

112 Ga. 78

MELL v. STATE.

Syllabus by the Court.

Supreme Court of Georgia

October 30, 1900

Where in the trial of a murder case, the accused presents two theories of defense, to wit: First, that the killing was done to prevent a forcible invasion of his habitation; and second, that in killing the deceased he acted under the fears of a reasonable man that a felony was about to be perpetrated upon him,--and there is nothing in the evidence or in the statement of the accused to show that there had been any mutual combat, it is error to give in charge to the jury section 73 of the Penal Code.

Error from superior court, Chatham county; R. Falligant, Judge.

W. S Mell was convicted of murder, and brings error. Reversed.

Robt. L. Colding and Jos. A. Cronk, for plaintiff in error.

W. W Osborne, Sol. Gen., and J. M. Terrell, Atty. Gen., for the State.

SIMMONS C.J.

Mell was indicted for the crime of murder. He was tried and convicted. Upon his trial he set up two defenses: First, that Busbee, the deceased, was attempting in a violent and forcible manner to invade his habitation, and that the killing was to prevent such invasion; and, second, that at the time he shot Busbee he acted under the fears of a reasonable man that a felony was about to be perpetrated upon him. The judge, in charging the jury, read section 72 of the Penal Code, which declares that it shall be justifiable homicide to kill a person who forcibly attacks and invades one's habitation, if the killing be necessary in order to prevent such invasion. He then (simply remarking, without further explanation, "That section applies to the question of invading the habitation of another") read section 73 of the Penal Code, without intimating that it was inapplicable save in cases of mutual combat. In his motion for new trial, which was overruled by the court, Mell complained that this was error. We think the exception was well taken. A careful examination of the record fails to disclose anything in the evidence or in the statement of the accused to show a mutual combat between the parties. This court has held in many cases that, unless there is evidence of a mutual combat, section 73 of the Penal Code is inapplicable to the case. Unless there is or has been a mutual combat or fight between the parties, we cannot conceive how the slayer could in good faith endeavor to decline any "further struggle" before he gave the mortal blow....