Slocumb v. State

• Citation: 121 S.E. 116,157 Ga. 131
• Decision Date: 19 December 1923
• Docket Number: 3712.
• Parties: SLOCUMB v. STATE.
• Court: Supreme Court of Georgia

121 S.E. 116

157 Ga. 131

SLOCUMB v. STATE.

No. 3712.

Supreme Court of Georgia

December 19, 1923

Rehearing Denied Jan. 19, 1924.

Syllabus by the Court.

The omission of the judge to instruct the jury as to the law of impeachment of witnesses by contradictory statements does not require the grant of a new trial, in the absence of an appropriate and timely written request for an instruction on the subject. Long v. State, 127 Ga. 350 (4), 56 S.E 444; Lewis v. State, 125 Ga. 48 (1), 53 S.E. 816; Stiles v. State, 154 Ga. 86 (2), 113 S.E. 208.

The charge of the court applied the doctrine of reasonable fears as embodied in the Penal Code 1910, § 71, and the omission to charge the exact language of that provision of the Code was not erroneous.

The judge charged the law of voluntary manslaughter as contained in section 65 of the Penal Code 1910, but did not charge the law of voluntary manslaughter as related to the doctrine of mutual combat; and it was not error to fail to charge upon this subject, as mutual combat was not involved under the evidence. Russell, C.J., and Atkinson, J., dissent from the ruling of the majority in this headnote; their views on this subject being as follows: On the trial of a defendant charged with murder, where there is evidence authorizing the jury to conclude that at the time of the homicide the accused and the person killed were engaged in mutual combat, it is the duty of the judge, with or without a request, to charge the law of voluntary manslaughter as related to the doctrine of mutual combat, and his failure to so charge the jury will require the grant of a new trial. Buchanan v. State, 153 Ga 866, 113 S.E. 87; Ison v. State, 154 Ga. 408, 114 S.E. 351, and cases cited.

(a) Mutual combat exists where there is a fight and both parties are willing to fight. Tate v. State, 46 Ga. 148; Ison v. State, supra.

(b) Though conflicting, there was evidence tending to show the following facts: The defendant and the deceased had a quarrel at the Ocmulgee Park, and separated. A few hours later they met in front of Cody's ice cream parlor. The deceased with certain companions arrived a few moments before the defendant. When the defendant arrived, he "seemed to be very angry," and approached the deceased and his companion. The deceased asked the defendant "why he threw the brick at him," and the defendant made no answer. The deceased arose from where he was sitting, and "grabbed" the defendant in his shirt. The defendant "snatched aloose" from the deceased, and "pulled a pistol from his bosom" and shot the deceased, inflicting the mortal wound from which he died. The deceased had no weapon when the shooting occurred. They were each about 18 years of age. This evidence was sufficient to show mutual intention to fight, executed by the parties engaging in combat.

The failure upon the part of the court to charge section 73 of the Penal Code 1910, which declares that "if a person kill another in his defense, it must appear that the danger was so urgent and pressing at the time of the killing, that in order to save his own life, the killing of the other was absolutely necessary; and 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," was not hurtful to the accused. While this section is applicable in cases of mutual combat, it was clearly not hurtful to the defendant to omit giving it as a part of the instructions in this case.

The defendant's attorney stated to the court and jury on the trial "that the state * * * showed a case of voluntary manslaughter, or made no greater case than voluntary manslaughter." After such statement the judge did not err in charging the jury: "Now, in this case, one of the contentions of the defendant is that he cannot be guilty of any greater offense than voluntary manslaughter."

Provocation by opprobrious words or abusive language alone will not reduce an unlawful homicide from murder to voluntary manslaughter. Penal Code 1910, § 65; Fargerson v. State, 128 Ga. 27, 57 S.E. 101. The charge complained of in the sixth ground of the motion for a new trial is not erroneous for the reason stated.

The court did not err in charging: "But if the provocation given by [the deceased] to the defendant and the only provocation given him was to advance and place his hand upon his collar, and you believe that conduct was justified, and that was the only conduct of the deceased, then that conduct of [the deceased] would not avail the defendant for the purpose of reducing the killing from murder to voluntary manslaughter." Lingo v. State, 29 Ga. 470; Thompson v. State, 55 Ga. 47; Mathews v. State, 125 Ga. 50, 54 S.E. 196.

The judge was requested to charge: "The burden is on the state to prove malice; unless the state proves malice, then there can be no verdict of guilty of murder, for there can be no murder without malice, and it would be your duty to acquit the defendant." The substance of this request was sufficiently stated in the charge as given, and the refusal to instruct the jury in the exact language of the request is not cause for a reversal.

With reference to the law of self-defense the judge charged: "It must appear that * * * [the deceased] was seeking to inflict upon the defendant a felonious assault, or was doing something that gave him reasonable ground to believe that * * * his life was in danger. He could not be entitled * * * to a verdict of not guilty * * * unless it appeared that he acted in self-defense at a time when either his life was in danger, or he had reasonable ground to so believe, at the hands of [the deceased], or that he was in danger of having inflicted upon him by [the deceased] a felonious assault. It would [not?] be a felonious assault for [the deceased] to merely strike the defendant with his hands, or any degree of violence of that sort; it must be an assault that would itself be a felony, such as assault with a pistol or knife, or some other assault of that sort that would amount to a felony on the part of" the deceased. This charge was not erroneous on the grounds: (a) That it denied the right of self-defense. (b) It restricted the defense to an assault with a pistol or knife. (c) That it was for the jury to say what demonstration of violence will be sufficient to justify a homicide.

Error from Superior Court, Bibb County; H. A. Mathews, Judge.

Jake Slocumb was convicted of murder, and he brings error. Affirmed.

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

In a prosecution for murder in which mutual combat was not involved, held not prejudicial to accused to fail to charge Pen. Code 1910, § 73, declaring that if a person kill another in self-defense it must appear that the danger was so evident that in order to save his own life the killing was absolutely necessary, and also that the person killed was the assailant, or that the slayer had in good faith attempted to decline any struggle.

Jake Slocumb was charged with the crime of murder by shooting Harrison Goodrum with a pistol and causing his death. The jury returned a verdict finding the defendant guilty, and recommending him to the mercy of the court. The exception is to the judgment refusing the defendant's motion for a new trial. The evidence shows that the tragedy occurred late Sunday afternoon, in front of Cody's ice cream parlor, in the village of Tindallfield near the city of Macon in Bibb county. The defendant fled, and after two years was arrested in New Jersey and brought back for trial. Guy Goodrum, brother of Harrison Goodrum, the deceased, testified as follows: Slocumb and Harrison had had a difficulty earlier in the evening at a nearby...