Partee v. State
| Citation | 92 S.E. 306,19 Ga.App. 752 |
| Decision Date | 24 April 1917 |
| Docket Number | 8354. |
| Parties | PARTEE v. STATE. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Where the defendant in a criminal case enters a general plea of not guilty, but interposes and relies upon a special defense, it is not error requiring a new trial for the trial judge, in his enumeration of the defendant's contentions, to call the jury's attention to the special defense.
The charge of the court on the methods of impeachment referred to in sections 1051, 1052, and 1053 of the Penal Code of 1910 was warranted by the evidence.
A party cannot obtain a reversal for an error which he has himself invited.
The evidence for the state, if believed, was sufficient to support a conviction of the offense of murder. The defendant having been found guilty of the lessor offense of voluntary manslaughter, a new trial will not be granted him; it appearing that the verdict was in conformity with the charge of the court given at his request.
In the absence of a timely and appropriate request, the failure of the court to give instructions applicable to isolated facts and circumstances relied upon by a party to sustain his contentions is not error.
A ground of the motion for a new trial complaining of the failure of the court to submit a certain instruction upon the law of justifiable homicide is not a good exception, when it fails to point out what the trial judge should have charged or why the omission to charge as suggested is error.
Error from Superior Court, Clarke County; C. H. Brand, Judge.
J. W Partee was convicted of voluntary manslaughter, and he brings error. Affirmed.
Ground of motion for new trial for failure to submit instruction on law of justifiable homicide is not a good exception, when it fails to point out what the court should have charged, or why omission to charge as suggested is error.
T. S Davis, Cohen Davis, and Alfred Davis, three brothers, were in the town of Lavonia, Ga., in the afternoon of October 23, 1915, for the purpose of attending a show. Just before the beginning of the show, Cohen Davis engaged in a difficulty with Pike Whitworth. Davis accused Whitworth of calling him a vile name and slapped his face. Spectators interfered, and Davis went with a friend into the circus tent. Inside the tent, Cohen Davis and his two brothers were seated on the lower seats, awaiting the beginning of the performance. It appears that one Tribble had reported the difficulty between Cohen Davis and Whitworth to Policemen Ledford and Weldon. These officers, together with J. W. Partee, the defendant in this case, entered the tent and approached the three Davis boys. The state contended that, when the officers approached the Davis boys, Ledford said to Cohen Davis, "Cohen, let me see you a minute," and, reaching over, attempted to pull him out of his seat. Tom Davis arose, and, placing his hand on the officer's shoulder, requested that he be allowed to make bond for his brother. Ledford declined to accept bail, and continued in his effort to carry Cohen Davis from the tent. At this time, Weldon struck Cohen Davis with a walking cane one or more times over the head and shoulders. Partee was standing on the right of Ledford and Weldon. He stepped around and behind these officers. Tom Davis had withdrawn his hand from the officer's shoulder and reached down, apparently to take hold of his brother Cohen, who was still seated. As Partee reached the left side of the officers, and just as Tom Davis leaned forward with his back to the officers and to Partee in particular, Partee drew a pistol from his pocket, pointed it directly at Tom Davis, and fired twice. Several witnesses testified that the pistol in the hands of Partee at the time it was fired was about two feet from Tom Davis's body. The latter walked a few feet, sank to the ground, was taken from the tent, and died a few minutes later. During the shooting which followed the slaying of Tom Davis, his brother Cohen was killed, and officers Ledford and Weldon also received wounds. Ledford and Weldon, the officers, were not present at the difficulty between Cohen Davis and Whitworth on the outside of the tent. No warrant had been issued for the arrest of Davis, and he was not endeavoring to escape. He was committing no offense at the time of the attempted arrest.
It was contended by the defendant that, when the officers approached Cohen Davis the three Davis brothers arose almost simultaneously, drew their pistols, and began firing. The evidence offered by the defendant upon his trial is to the effect that Weldon, one of the witnesses, shot and killed both Tom and Cohen Davis. According to the defendant's evidence and his contention, when the officers approached the Davis boys, there was a general fight between the three Davis brothers on the one hand, and the two arresting officers on the other. The defendant did not participate in the fight, and did not shoot the deceased. Immediately after the shooting, the defendant left the scene of the killing. That night be boarded an engine of a passing train, concealed himself in the tender or coal box, and was not again seen in Lavonia until after his arrest in the state of South Carolina. A discussion of the evidence in detail is unnecessary. The trial of the case consumed four days. The evidence for the state, if credible, made an unprovoked case of murder against the defendant. The evidence for the accused and his statement, if believed, established a case of justifiable homicide. It is doubtful if voluntary manslaughter is in the case. The defendant, however, requested the court to charge on manslaughter, and the jury found him guilty of that offense.
W. D. McNeil, of Macon, Geo. L. Goode, of Carnesville, Fermor Barrett, of Toccoa, and Thomas & Thomas and Henry C. Tuck, all of Athens, for plaintiff in error.
Claude Bond, of Toccoa, H. H. Chandler and Dorsey Davis, both of Lavonia, R. B. Russell, Hugh M. Dorsey, and E. A. Stephens, all of Atlanta, W. R. Little, of Carnesville, W. M. Smith, of Athens, Thos. J. Brown, Sol. Gen., of Elberton, John B. Gamble, Sol. Gen., of Athens, and W. O. Dean, Sol. Gen., of Monroe, for the State.
GEORGE, J. (after stating the facts as above).
1. In the first and seventh grounds of the amendment to the motion for a new trial it is complained that the court, in the charge to the jury, restricted them to a consideration of whether the defendant or the policeman Weldon killed the deceased, and that the instruction as given was not adjusted to the evidence and was prejudicial to the accused, because there was testimony tending to show that some person or persons other than the accused or the policeman might have killed the deceased. The presiding judge certifies that the defendant contended upon the trial that the deceased was killed by the officer Weldon, and was not shot and killed by himself. From a close scrutiny of the charge it appears that the court, in the excerpts to which exceptions are taken, was stating the contention of the defendant for the purpose of applying the law thereto. We think the first headnote of this decision announces a sound principle. If the defendant, under a general plea of not guilty, interposes a specific defense, the trial judge in his charge to the jury is authorized to instruct them upon that defense. It is the duty of the trial judge to deliver instructions appropriate to every phase of the evidence, without regard to whether a particular view of the case may or may not have been insisted upon by the defendant; but it is quite apparent that there is no merit in the contention presented in these grounds of the motion for a new trial. The jury, under the evidence in this case, could only find that the killing was done either by the defendant or the officer Weldon. Any other finding would amount to mere conjecture. Counsel for the plaintiff in error, in the brief filed in this court, used this language:
"There was only one issue in this case--did Partee kill Davis, or was Weldon the author of the shooting?"
We think counsel have rightly conceived the facts of this record, and we are equally certain that neither the plaintiff in error nor his counsel have any right to complain that the trial court instructed the jury upon a theory which they specifically and consistently insisted upon throughout the trial of the case, and still urged upon this court on a review of the case.
2. The statement made in the second headnote disposes of the fourth ground of the amendment to the motion for a new trial. The state...
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