Morgan v. State

• Citation: 110 S.E. 286,152 Ga. 537
• Decision Date: 13 January 1922
• Docket Number: 2497.
• Parties: MORGAN v. STATE.
• Court: Supreme Court of Georgia

110 S.E. 286

152 Ga. 537

MORGAN v. STATE.

No. 2497.

Supreme Court of Georgia

January 13, 1922

Syllabus by the Court.

Under the evidence in this case the court should have charged literally or in substance the law of self-defense as declared in Pen. Code 1910, § 70, relating to the subject of justifiable homicide; and his failure to do so was error requiring the grant of a new trial.

Pen. Code 1910, § 71, declares: "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 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 those fears, and not in a spirit of revenge." A charge as complained of in the twelfth ground of the motion for new trial, attempting to apply this law, which employs the words "justify the inference of a reasonable man," as a substitute for the words "excite the fears of a reasonable man," as employed in the Code section above quoted, is not exact. It was also inapt to charge that the jury "must be satisfied" from the evidence that it was necessary for the defendant to kill the deceased in order to save his own life, "in order to find him not guilty."

The theory of mutual combat was not involved under the evidence in this case; and, that being true, it was error to give in charge to the jury in part the substance of section 73 of Pen. Code 1910. Delegal v. State, 109 Ga. 518, 35 S.E. 105; Freeman v. State, 112 Ga. 48(3), 37 S.E. 172.

None of the other assignments of error require the grant of a new trial.

Error from Superior Court, Haralson County; F. A. Irwin, Judge.

James Morgan was convicted of homicide, and he brings error. Reversed.

Griffith & Matthews, of Buchanan, for plaintiff in error.

J. R. Hutcheson, Sol. Gen., of Douglasville, R. A. Denny, Atty. Gen., and Graham Wright, Asst. Atty. Gen., for the State.

ATKINSON, J.

Judgment reversed.

All the Justices concur.