Pugh v. State

• Decision Date: 05 November 1901
• Parties: PUGH. v. STATE.
• Court: Georgia Supreme Court

39 S.E. 875

114 Ga. 16

PUGH.

v.STATE.

Supreme Court of Georgia.

Nov. 5, 1901.

JUSTIFIABLE HOMICIDE—INSTRUCTIONS—VOLUNTARY MANSLAUGHTER.

1. The law embraced in section 73 of the Penal Code does not qualify or limit the law of justifiable homicide, as contained in sections 70 and 71. While the law embodied in sections 70 and 71, as well as that embodied in section 73, may both be properly given in the same case, the provisions of the different sections should not be charged in such a way as to leave the impression upon the jury that they are both applicable to the same state of facts.

2. The law with reference to voluntary manslaughter is not applicable to the facts disclosed by the record, and it was therefore error to give the same in charge, and to fail to set aside a verdict finding the defendant guilty of that offense.

(Syllabus by the Court.)

Error from superior court, Hart county; H. M. Holden, Judge.

John Pugh was convicted of voluntary manslaughter, and brings error. Reversed.

A. G. & Julian B. McCurry, for plaintiff in error.

D. W. Meadow, Sol. Gen., for the State.

LEWIS, J. John Pugh was Indicted and tried for the murder of Gus Prather. The evidence was very conflicting. That for the state tended to show a case of deliberate murder, preceded by threats that the defendant would take the life of the deceased when they met, and an effort to seek out the deceased for the purpose of killing him. That for the defendant was to the effect that the deceased fired two shots at the defendant before the defendant drew his weapon, and that it was necessary for the defendant to kill the deceased in order to save his own life. The jury returned a verdict finding the defendant guilty of voluntary manslaughter. The defendant moved for a new trial on various grounds, the important ones of which will be taken up in due order. The court below overruled the motion, and the defendant excepted.

1. Complaint is made in the motion that the court erred in the following charge: "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 such as 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.

If a person kill another in his defense, it must appear that at the time of the killing the danger was so urgent and pressing that In order to save his own life the killing of the other was absolutely necessary. It must appear, also, that the person killed was the assailant, or that the slayer had really and in good faith endeavored to decline any further struggle before the mortal blow was given." The language quoted is that embraced in sections 71 and 73 of the Penal Code, and it is objected that this charge deprived the defendant of the right to rely upon justification of the killing under the fears of a reasonable man, and not in a spirit of revenge, and placed his defense solely upon the ground that the killing was necessary to prevent the commission of a felony. The precise question here made was decided by this court in the case of Teasley v. State, 104 Ga. 738, 30 S. E. 938, where a charge almost identical in phraseology with the one heretofore quoted in this opinion was given by the trial court, and objected to by the plaintiff in error. It is also to be noted that the facts of the case cited are very similar to those of the case at bar, and that the assignment of error in each case is the same. The principle ruled in that case is therefore directly applicable to the case under consideration. The language of the headnote, which has been partially followed in the first headnote of the present case, is as follows: "The law embraced in section 73 of the Penal Code does not...