Plymel v. State

• Decision Date: 08 September 1927
• Docket Number: 5739.
• Citation: 139 S.E. 349,164 Ga. 677
• Parties: PLYMEL v. STATE.
• Court: Georgia Supreme Court

139 S.E. 349

164 Ga. 677

PLYMEL v. STATE.

No. 5739.

Supreme Court of Georgia

September 8, 1927

Syllabus by Editorial Staff.

In prosecution for murder, evidence that defendant shot deceased because "he was coming on to him with his knife," and that deceased approached within striking distance when shot was fired, was sufficient to authorize charge on subject of voluntary manslaughter on basis of passion produced by assault.

In prosecution for murder, circulation of report by deceased brought to defendant's attention, that deceased was in habit of having adulterous intercourse with defendant's wife, and that it was doubtful whether her youngest child was defendant's or deceased's, was not sufficient to authorize charge on subject of voluntary manslaughter relating to passion on discovery of debauchery of defendant's wife.

In prosecution for murder, statement by deceased to defendant that "you have been telling damn lies on me too, and I am damn tired of it," together with evidence that deceased started on defendant with a knife, and defendant shot because he saw deceased meant to hurt him, authorized charge on subject of voluntary manslaughter.

In prosecution for murder, instruction that jury could return only three forms of verdict, guilty with or without recommendation, or not guilty, was error, as eliminating from consideration of jury question of voluntary manslaughter which evidence showed was involved in case.

In prosecution for murder, instruction by judge on voluntary manslaughter quoting from Pen. Code 1910, § 65, providing that provocation by threats or gestures will not relieve one of crime of murder, was not error, for failure to charge on doctrine of reasonable fears arising from threats which may justify killing.

Matters of voluntary manslaughter and justifiable homicide are separate and distinct, and instruction on voluntary manslaughter may include statement from Pen. Code 1910, § 65 that threats or gestures will not free person from crime of murder.

In prosecution for murder, charge defining murder, after giving definition of murder as contained in Pen. Code, 1910, § 60 was not error as repetition tending to unduly impress on jury law of murder and amounting to expression of opinion that accused was guilty of murder.

In prosecution for murder, charge on subject of reasonable fears justifying killing, given after definition of justifiable homicide, repeated in exactly same language, was not error as tending to impress on minds of jury that homicide was committed under "bare fear," and amounting to expression of opinion by court.

Error from Superior Court, Berrien County; Jon. P. Knight, Judge.

Mallie Plymel was convicted of murder, and he brings error. Reversed.

W. D. Buie and Jeff S. Story, both of Nashville, for plaintiff in error

p>Page H. C. Morgan, Sol. Gen., of Homerville, Geo. M. Napier, Atty. Gen., T. R. Gress, Asst. Atty. Gen., and W. R. Smith and J. H. Hull, both of Nashville, for the State.

Syllabus OPINION.

ATKINSON J.

1. On the trial of a person charged with murder, where the evidence shows that the defendant killed the deceased as alleged in the indictment by shooting him with a pistol, evidence that the defendant shot the deceased because "he was coming on to him with his knife," in connection with other evidence that deceased approached to within striking distance when the shot was fired, was sufficient to authorize a charge upon the subject of voluntary manslaughter, on the basis of passion produced by an assault, as ruled in Williams v. State, 125 Ga. 302, 54 S.E. 108, and cit., and Brown v. State, 144 Ga. 216, 87 S.E. 4.

2. On the trial of a case of the character just indicated, the defendant in his statement before the jury said in effect that on the day of the homicide, and within one or two hours before its commission, he had been informed that the deceased had circulated a report that he was in the habit of having adulterous intercourse with the wife of the defendant whenever he desired, and it was doubtful whether her youngest child was his or the defendant's, and that, when called upon to face the persons who had informed the defendant about the circulation of the report, the deceased stated to the defendant, "You have been talking and telling damn lies on me too, and I am damn tired of it," and "started on" the defendant with a knife, and the defendant fired the fatal shot when he saw that the deceased "meant to hurt" him. Held: (a) The circulation of the report attributed to the deceased in the defendant's statement before the jury was not sufficient to authorize a charge upon the subject of voluntary manslaughter, under the principle ruled in Richardson v....