Smith v. State

• Decision Date: 14 March 1899
• Citation: 32 S.E. 851,106 Ga. 673
• Parties: SMITH v. STATE
• Court: Georgia Supreme Court

32 S.E. 851

106 Ga. 673

SMITH v. STATE

Supreme Court of Georgia

March 14, 1899

Syllabus by the Court.

1. The evidence did not warrant a charge of voluntary manslaughter.

2. The fact that one who has done an act which may amount to a crime immediately flees may always be given in evidence as tending to show guilt, but should always be considered by the jury in connection with the motive that prompted it, and, at most, is only one of a series of circumstances from which guilt may be inferred.

3. The provisions of law relating to justifiable homicide, where the parties had been engaged in mutual combat, contained in section 73 of the Penal Code, were not applicable to the facts of this case.

4. When two or more persons manifestly intend and endeavor, in a riotous and tumultuous manner, to enter the habitation of another, for the purpose of assaulting or offering personal violence to any one being therein, and one of them, to prevent such entry, is killed by the occupant of the house if the circumstances were sufficient to excite the fears of a reasonable man that such entry was intended, and the killing was done under the influence of such fears, such a homicide is justifiable, even though the assault or personal violence intended be less than a felony; and a charge that the assault intended must amount to a felony was error.

Error from superior court, Gwinnett county; N. L. Hutchins, Judge.

Sam Smith was convicted of murder, and brings error. Reversed.

John R Cooper, Oscar Brown, and J. A. Perry, for plaintiff in error.

C. H Brand, Sol. Gen., for the State.

LITTLE J.

The first two grounds of the motion for new trial are based on the allegations that the verdict is contrary to law, and without evidence to support it. Inasmuch as the case goes back for another trial, we do not pass upon the weight of the evidence in the case.

1. The next ground of error assigned is that the court erred in charging the jury the law in relation to voluntary manslaughter. We are of the opinion that, under the facts in this case, there was no evidence which authorized a charge on the law of voluntary manslaughter. We do not wish to be understood as saying that, if the circumstances were different (that is to say, if there was any proof, or a legitimate inference from the facts in evidence, that the plaintiff in error slew the deceased as the result of passion founded on sufficient provocation, found in the trespass of the deceased on the property of the accused), the offense of which he would be guilty would not be that of voluntary manslaughter. Every homicide committed as the result of passion is by no means to be classed as voluntary manslaughter. A homicide, when done in the absence of malice, and as the result of a sudden heat of passion engendered by a provocation sufficient in law to justify the passion, is graded below the crime of murder, because the killing is then partially excused on account of the justly-aroused passion. Nor is it always necessary, in order to grade the offense as voluntary manslaughter, that there should be an assault upon the person killing, to justify the excitement of passion which induced the homicide. Golden v. State, 25 Ga. 532; Stokes v. State, 18 Ga. 17. Our Penal Code (section 65) declares that in all cases of voluntary manslaughter there must be some actual assault upon the person killing, or an attempt by the personal killed to commit a serious personal injury on the person killing, or other equivalent, circumstances to justify the excitement of passion. Assuming, as we must, under the evidence, that the deceased was a trespasser on the property of the accused at the time of the homicide, under the theory of the state he was a mere trespasser, without intending to injure the person or property. Under general criminal law, neither insulting nor abusive words or gestures, nor trespass, nor breach of contract, of themselves, amount to sufficient provocation for an act of resentment likely to endanger life. A mere trespass on property, less than that, to protect which, our Code makes it justifiable homicide to kill the trespasser, may be resisted by any reasonable or necessary force, short of taking or endangering life. Clarke, Cr. Law, p. 145. If, in the course of a struggle to prevent such a trespass, by the use of reasonable and necessary force, which the owner is entitled to use, a struggle and combat ensue, then, whether the slayer is justified, or guilty of murder or voluntary manslaughter, is to be determined by other rules, not necessary here to be discussed. According to the evidence, there was no attempt to remove the trespasser; but the theory of the state is that the plaintiff in error, with malice, or actuated by the spirit of revenge, deliberately shot the accused while standing in the yard of the latter, when there was no necessity for him to do so to protect his habitation of family, and no circumstances at the time to justify a passion which caused him to shoot the deceased. The theory of the defendant was that he shot and killed the deceased to prevent him from entering his house, which he says the deceased was attempting to do, to commit an assault on the person of his wife. The issue is a clearly-defined one. If the theory of the defendant be supported by the facts, he was not guilty of any offense, but was entirely justified. If the theory of the state be correct, then the crime was murder. Under the evidence, there seemed to have been a deliberate shooting on the part of the deceased, not as the result of passion, nor in a struggle; nor was there any mutual combat, nor any evidence of an attempt by the slayer to remove the trespasser from his premises otherwise than by deliberately shooting him down. The evidence in this case is remarkable, not for what the witnesses who went to the house of the accused with the deceased say as to the facts of the homicide, but as to what they do not say; and, although three of them were present at the time on the premises of the accused, no clear account is rendered by any of them as to the facts of the homicide. But from the evidence of these witnesses, and circumstances shown by other witnesses, we fail to find any circumstances establishing the proposition that the shooting was the result of passion. This being true, a charge relating to voluntary manslaughter was error. Nor can a conviction for this offense stand, under the evidence disclosed in the record. Dyal v. State, 97 Ga. 428, 25 S.E. 319.

2. Another ground of the motion for new trial alleges that the court erred in charging on the subject of flight. The language of the court on this subject is as follows "Something has been said upon the subject of flight. The rule on that subject is that where one commits an act that amounts presumptively to a crime, and the party who commits the act immediately flees from the processes and officers of the law, to avoid arrest or trial, the presumption would be authorized that he filed, from the consciousness of guilt. That presumption can be rebutted by showing that flight was not from a sense of conscious guilt, but for other reasons." It may be that the principle stated by the judge in his charge is a correct one, and if the propositions that the accused immediately flees from the...