Rawls v. State

• Decision Date: 24 June 1925
• Docket Number: 4669.
• Citation: 128 S.E. 747,160 Ga. 605
• Parties: RAWLS v. STATE.
• Court: Georgia Supreme Court

128 S.E. 747

160 Ga. 605

RAWLS v. STATE.

No. 4669.

Supreme Court of Georgia

June 24, 1925

Syllabus by the Court.

The first ground of the amended motion is as follows: "The court charge the jury as follows, to wit: 'For if there should have been an interval between the assault or provocation given and the homicide, of which you in all cases shall be the judges, sufficient for the voice of reason and humanity to be heard, the killing shall be attributed to deliberate revenge and be punished as murder.' " It is contended that "this was error because it is argumentative, and there was no evidence to authorize it." Held, that this charge was not error for any reason assigned. This excerpt from the charge constitutes an integral part, but not the whole of Pen. Code 1910, § 65 defining voluntary manslaughter, all of which was given in charge. It is not claimed that the court erred in charging the law of voluntary manslaughter.

The second ground of the amended motion complains that "the court omitted, in its charge, to explain fully to the jury that while words, threats, menaces, and contemptuous gestures shall in no case be sufficient to reduce the crime from murder to manslaughter, yet such words, threats, menaces, and contemptuous gestures might be sufficient to free the defendant from any crime at all, if he acted upon the fears of a reasonable man, so engendered by them, that a felony was about to be committed upon his person. This omission was error, because self-defense, under the fears of a reasonable man, required this explanation when the evidence showed the deceased was of a weight estimated at 187 to 240 pounds and the defendant 130 pounds, and the beginning of the difficulty was initiated with the statement of the deceased: 'I will take that gun away from you and beat hell out of you.' " Held, that the omission of which complaint is made was not error for any reason assigned. The court fully and fairly instructed the jury in regard to the law of voluntary manslaughter, as embodied in the Penal Code. The doctrine of reasonable fears has no connection with the offense of voluntary manslaughter. Adkins v. State, 137 Ga. 81, 72 S.E. 897, a case in which the defendant, in his statement, claimed that the homicide was accidental; Deal v. State, 145 Ga. 33, 88 S.E. 573; White v State, 147 Ga. 377 (4), 381, 94 S.E. 222. Compare Vernon v. State, 146 Ga., beginning on page 709, and also page 714, 92 S.E. 76.

The court did not err in failing to charge the law of involuntary manslaughter.

The fourth and sixth grounds of the amended motion complain of excerpts from the charge of the court on the subject of admissions by silence. These grounds of the motion are not meritorious.

The fifth ground of the amended motion assigns error on the admission of the following evidence: "Q. She [referring to Mrs. A. L. Poindexter, wife of deceased] followed him? A. And she said, 'You shot him when he was down, and you will pay for it with your life.' Q. About how long after the firing of the second shot that she made this remark? A. I would estimate four or five seconds. Q. She said, 'You shot him when he was down, and you will pay for it with your life'? A. Yes. The Court: Did the prisoner make any reply? A. Not to my knowledge." The objections to this evidence were: (a) What Mrs. Poindexter said was after the homicide was over; (b) it was hearsay; (c) it had no probative value, and was immaterial. Held, that the evidence was not inadmissible for any of the reasons stated in the three grounds of objection. Pen. Code 1910, § 1029; Nunn v. State, 143 Ga. 454, 85 S.E. 346; Smiley v. State, 156 Ga. 60, 118 S.E. 713.

Another ground of the motion complains that the court charged the jury as follows: "If Poindexter was killed by the defendant, Rawls, under the circumstances contended by Rawls that is, that Poindexter, without sufficient provocation, was endeavoring to take the life of Rawls, or to commit upon his person a serious personal injury, amounting to a felony, and that Rawls, in attempting to avert the threatened injury under such circumstances engaged in a struggle over a pistol which was accidentally discharged, and that Poindexter was thus killed, Rawls would not be guilty, and it would be your duty to return a verdict of not guilty, provided it satisfactorily appears to you that there was no evil design, or intention, or culpable neglect on the part of the prisoner." The criticism is that "this was error, because it placed upon the defendant a greater burden than the law imposes. It was not necessary to this defense that it satisfactorily appear that there was no evil design, or intention, or culpable neglect on the part of the prisoner, as these elements were not involved." Held, that this charge was not error.

The eighth ground of the amended motion complains that the court refused to give the following charge to the jury, though duly requested in writing: "I charge you in this case that, if A. Lamar Poindexter was killed by the defendant, Bernard H. Rawls, under the circumstances as contended by Rawls; that is, that Poindexter, without sufficient provocation, was endeavoring to take the life of Bernard H. Rawls, or to commit upon his person a serious injury amounting to a felony, or the circumstances were such as to justify the fears of a reasonable man that his (Rawls') life was in danger, or that Poindexter was attempting to commit upon Rawls a serious personal injury amounting to a felony, and Rawls, in attempting to avert the threatened injury under such circumstances, and you find that a struggle ensued over a pistol which was accidentally discharged and that the deceased, A. Lamar Poindexter, was thus killed, the defendant would not be guilty of any offense under the law, and it would be your duty to acquit him and to return a verdict of not guilty." It is insisted that it was error to refuse this request, "because the evidence justified and demanded it." Held, in view of the instructions on that subject actually given to the jury, this ground of the motion does not show error. The court charged the jury on all of the subjects embraced in the written request, but at the end of the instruction on the subject of homicide by accident, applying the principles of Pen. Code 1910, § 40 to the concrete facts of the case, added the following: "Provided it satisfactorily appears that there was no evil design or intention or culpable neglect on the part of the prisoner." Thus it will be seen that this ground of the motion presented the same question with which we have dealt in the seventh headnote.

The verdict is supported by evidence.

Error from Superior Court, Chatham County; Peter W. Meldrim, Judge.

B. H. Rawls was convicted of an offense, and he brings error. Affirmed.

Russell, C.J., and Atkinson, J., dissenting in part.

Hitch, Denmark & Lovett and Lawrence & Abrahams, all of Savannah, for plaintiff in error.

Walter C. Hartridge, Sol. Gen., of Savannah, Geo. M. Napier, Atty. Gen., and T. R. Gress, Asst. Atty. Gen., for the State.

HILL J.

1, 2. The first and second headnotes do not require elaboration.

3. The third ground of the motion complains that the court erred in failing to charge the law of involuntary manslaughter. An examination shows that the law of involuntary manslaughter was not involved under the evidence either for the state or the accused. Golatt v. State, 130 Ga. 18, 60 S.E. 107; Drane v. State,

147 Ga. 212 (2), 93 S.E. 217. Movant insists that under the evidence of Frank E. Shumate involuntary manslaughter was involved, and this evidence is quoted in the brief of counsel as follows:

"As I was going down the hall, I looked into the soda water stand, or cigar stand, and I saw two men in some sort of a struggle. My first impression was that they were scuffling--had no idea of a fight--and I took another step or two, and the pistol fired. At the time the second shot was fired Mr. Poindexter was with his back towards the end of the soda fountain, and Mr. Rawls was with his back towards the cigar stand. They were in contact--I don't know in what way, but they were in contact--they appeared to be struggling. Mr. Poindexter was not lying on the floor when the second shot was fired. I am sure of that. He fell after the second shot was fired. The struggle began along the soda water counter, and his left elbow touched the rear corner of the soda water stand, and he fell on his back with his head between the counter and his feet towards the cigar stand."

We see nothing in this evidence to require the charge as contended. While the witness speaks of a "struggle" and of a "scuffle," these terms alone do not necessarily mean that the participants in the rencounter were scuffling or struggling over a pistol. Mrs. Poindexter, a witness for the state, testified:

"I got to the door when the first shot was fired. * * * I saw Mr. Poindexter grab Mr. Rawls' hand--he pulled his gun out of his right-hand pocket. The pistol was not exposed. Mr. Rawls reached into his pocket. Mr. Poindexter grabbed it after it was out. He grabbed his wrist, I could not say on which hand. Mr. Poindexter held it, and Mr. Rawls pulled it, and it fired directly past him in the floor, and it made a graze. Mr. Poindexter had him by the wrist. Mr. Poindexter, whether he was hurt or what, slipped. We have a leak in the fountain, and there was water on the floor, which made it slippery. It was about a minute after the first

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