Norris v. State, 36102

• Citation: 92 S.E.2d 537,93 Ga.App. 641
• Decision Date: 13 March 1956
• Docket Number: No. 2,No. 36102,36102,2
• Parties: J. L. NORRIS v. The STATE
• Court: United States Court of Appeals (Georgia)

Page 537

92 S.E.2d 537

93 Ga.App. 641

J. L. NORRIS v. The STATE.

No. 36102.

Court of Appeals of Georgia, Division No. 2.

March 13, 1956.

Rehearing Denied March 22, 1956.

Hubert C. Morgan, John L. Respess, Jr., Atlanta, for plaintiff in error.

Paul Webb, Sol. Gen., Jeptha C. Tanksley, Eugene L. Tiller, Charlie O. Murphy, Atlanta, for defendant in error.

Syllabus Opinion by the Court.

CARLISLE, Judge.

Upon his trial under an indictment for the murder of the deceased, by shooting him with a rifle, the defendant was found guilty of voluntary manslaughter and sentenced to serve a term of from 8 to 13 years in the penitentiary. His motion for a new trial, based upon the usual general grounds and 5 special grounds [numbered from 4 to 8], was denied, and he has brought the present writ of error to review that judgment.

1. On the trial of a person charged with murder, where the jury is authorized to find from the evidence that the defendant killed the deceased as alleged in the indictment by shooting him with a rifle, and, from the defendant's statement, the defendant shot the deceased during a mutual altercation because he was coming on the defendant with a knife, a verdict of voluntary manslaughter and a charge by the court upon that subject is authorized. Plymel v. State, 164 Ga. 677, 139 S.E. 349, and citations; Goldsmith v. State, 54 Ga.App. 268, 270, 187 S.E. 694; Jones v. State, 71 Ga.App. 56, 57, 30 S.E.2d 284, and citations. There is no merit in the general grounds or special ground 3 (numbered 6) of the motion for a new trial.

2. 'The verdict of a coroner's jury has no probative value whatever as evidence, is binding upon no one, and cannot prejudice the right of any person.' Supreme Council of Royal Arcanum v. Quarles, 23 Ga.App. 104, 97 S.E. 557. There is, consequently, no error in the trial court's charging: 'Now, in this case it is contended by the defendant that after the alleged homicide described in the indictment, that an investigation was entered into by the coroner of this County and a coroner's jury, and that after such investigation the coroner's jury reached a certain verdict. Now, gentlemen, I instruct you that, after this defendant was indicted by the grand jury and you were impaneled as a jury to try the case based upon this indictment, that is a new or de novo hearing, and you are not bound by any verdict or conclusion which the coroner or coroner's jury may have reached, and in making up your verdict in this case you are not to be influenced thereby in any wise. In reaching your verdict in this case, gentlemen, you will reach it from a consideration of the evidence that has been adduced before you from the witness stand in this case and from all the surrounding facts and circumstances as shown by the evidence and from the defendant's statement, giving it such weight and credit as you think it is entitled to receive, applying the law as given you in charge, and you will not therefore be influenced by any conclusion that the Coroner's tribunal may have reached * * *'

Special ground 1 (numbered 4) is without merit.

3. 'An admission, as applied to a criminal case, is the statement by the defendant of a fact of facts pertinent to the issues, and tending, in connection with proof of other facts or circumstances, to prove the guilt of the accused, but which is of itself insufficient to authorize conviction.' Ransom v. State, 2 Ga.App. 826, 59 S.E. 101; Roberts v. State, 59 Ga.App. 192, 200 S.E. 233; Brown v. State, 83 Ga.App. 650, 64 S.E.2d 313; Ellis v. State, 166 Ga. 115, 142 S.E. 681. Under an application of this rule of law to the facts of this case, the trial court did not err in instructing the jury on the principle of incriminatory admissions. The defendant in his statement to the jury admitted the homicide. There is no merit in special ground 2 (numbered 5).

4. Any error in charging on the law as to murder is not ground for a new trial to one convicted of voluntary manslaughter. Curtis V. State, 28 Ga.App. 219(3), 110 S.E. 907. Under this ruling, there is no merit in special ground 4 (numbered 7).

5. 'In order for section 73 [Code, § 26-1014] to be applicable, in other words, in order for mutual combat to exist' [in a murder case], 'there must be a mutual intent to fight, on the part of both parties. Sanders v. State, 26 Ga.App. 475, 106 S.E 314. It is not necessary that mutual blows be exchanged (Pollard v. State, 124 Ga. 100, 52 S.E. 149; Buchanan v. State, 153 Ga. 866, 113 S.E. 87), nor is it material who strikes the first blow or fires the first shot, nor is it necessary that both parties strike blows or fire shots. Johnson v. State, 173 Ga. 734, 161 S.E. 590. This intent, 'like any other intent,...