Moultrie v. State

• Citation: 112 Ga. 121,37 S.E. 122
• Parties: MOULTRIE. v. STATE.
• Decision Date: 31 October 1900
• Court: Georgia Supreme Court

112 Ga. 121

37 S.E. 122

MOULTRIE.

v.STATE.

Supreme Court of Georgia.

Oct. 31, 1900.

HOMICIDE—INSTRUCTIONS—EVIDENCE-MUTUAL COMBAT.

1. The provisions of section 73 of the Penal Code should not be given in a charge, in the trial of a murder case, when there is nothing in the evidence or the statement of the accused from which a jury could find that there was a mutual combat between the deceased and the accused. Mell v. State (decided Oct. 30, 1900) 37 S. E. 121, and cases cited.

2. There was in the present case neither direct evidence, nor the proof of any circumstances, nor anything in the statement of the accused, from which a jury would be authorized to find that there was a mutual combat between the deceased and the accused.

(Syllabus by the Court.)

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

Jake Moultrie was convicted of homicide, and brings error. Reversed.

Twiggs & Oliver, for plaintiff in error.

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

PER CURIAM. Judgment reversed. All the justices concurring, except LUMPKIN, P. J., and LITTLE, J., absent on account of sickness.