Smith v. State, 24870.

• Court: United States Court of Appeals (Georgia)
• Writing for the Court: GUERRY
• Citation: 51 Ga.App. 601,181 S.E. 212
• Parties: SMITH. v. STATE.
• Docket Number: No. 24870.,24870.
• Decision Date: 02 August 1935

51 Ga.App. 601

181 S.E. 212

SMITH.
v.
STATE.

No. 24870.

Court of Appeals of Georgia,
Division No. 1.

Aug. 2, 1935.

Syllabus by the Court.

The trial judge did not err in giving in charge to the jury section 73 of the Penal Code 1910, nor did he in any way confuse the law as embodied in sections 70, 71 with that contained in section 73.

Error from Superior Court, Wilkes County; C. J. Perryman, Judge.

Jim Smith was convicted of voluntary manslaughter, and he brings error.

Affirmed.

See, also, 177 S. E. 76.

Hugh E. Combs, of Washington, Ga, for plaintiff in error.

J. Cecil Davis, Sol. Gen, of Warrenton, for the State.

GUERRY, Judge.

Jim Smith was indicted for the murder of Tucker Smith, his father. The scene of the homicide was the home of Tucker Smith. Those present were Toombs Walton, George Stevens, Maggie Smith, and Hattie Lou Walton. Shortly before the homicide, the defendant went into the room where Maggie Smith was seated and began winding the Victrola. It is disputed as to whom or what the remark was addressed, but it seems undisputed that the defendant remarked "damn it, " and possibly repeated it after being told not to do so, and that Tucker Smith, the deceased, thought the remark was addressed to Maggie Smith, his wife, and mother of the defendant, and ordered defendant out of the house. From this point the witnesses seem to be in conflict as to the exact sequence of events until the time of the homicide. Toombs Walton testified that, immediately after deceased ordered defendant out of the house, he (deceased) got his gun, and that witness took the gun away; that Tucker and defendant became involved in a "scuffle"; that defendant broke loose and went out in the yard, and deceased followed to the porch with his (defendant's) clothes and threw them out; that for some minutes defendant and deceased had words, although it was not clear to him what was being said; that defendant "throwed at his daddy twice, " at a distance of about 8 feet, with rocks,

[181 S.E. 213]

the first rock missed deceased and the second rock took effect in deceased's breast causing him to fall down the steps, where he died. George Stevens, who evidently was standing out in front of the house in the yard, testified that, when Tucker ordered Jim out of the house, defendant walked out of the house into the yard, and that deceased came out on the porch and brought defendant's clothes and threw them in the yard to defendant. "He told him there was his clothes, take them and leave, and when he needed him he would send for him. Jim said something to him and then he said something back to him and that time Jim threw two rocks." "Tucker and Jim did not get in a scuffle at the end of the doorsteps." Maggie Smith testified that, when Tucker ordered Jim out of the house, Jim went out in the yard; that Tucker got his gun; that Toombs Walton took the gun and deceased then got his razor; that Jim came back in the house to get his shoes and Tucker caught him in the collar and cut him in the head and arm; that defendant pulled loose and deceased cursed him, and "Jim run and got a rock and throwed it"; that Jim did not try to do anything to Tucker except get loose; that deceased followed Jim and "was going right on towards him, " when Jim threw the rock; that she found the razor the next morning right where Tucker fell off the porch. Hattie Lou Walton, testified that she did not see Tucker get a gun, but did see Tucker cutting defendant with a razor, at which time she departed the scene. Defendant's statement was simply that, after he broke loose from Tucker, he started out and deceased followed him, and defendant picked up a rock and threw at him. "I did not intend to kill him. I was trying to get him loose and make him let me alone because I knew he was mad and what he would do."

The jury returned a verdict of voluntary manslaughter. From a reading of the brief of counsel for plaintiff in error and an inspection of the motion for a new trial, these questions seem to be presented for adjudication: (1) When should section 73 of the Penal Code 1910 be given in charge to the jury? (2) Was there any evidence in the case on which to base the charge of section 73? (3) Did the judge, in the manner of giving his charge on justifiable homicide as contained in sections 70, 71, and section 73, if he was authorized to give the charge, and by their juxtaposition, tend to confuse the jury as to the defendant's rights under the facts of the case and place upon him an unauthorized burden in his defense?

The judge gave in charge to the jury section 73 of the Penal Code 1910 (Code of 1933, section 26-1014) as follows: "If a person shall 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." In discussing the meaning of this section and sections 70 and 71 of the Penal Code, Mr. Justice Little, in Powell v. State, 101 Ga. 9, 29 S. E. 309, 318, 65 Am. St. Rep. 277, said: "The two sections of the Code, 4330 and 4333 [Penal Code, §§ 70, 73], are parts of the common law. Sir William Blackstone, in the fourth book of his Commentaries (top pages 134--137) in treating of justifiable homicide, uses this language: 'In some cases homicide is justifiable rather by permission than by absolute command of the law, either for the advancement of public justice, or in such instances where it is committed for the prevention of some atrocious crime. This is true by the law of nature and by the law of England, as it stood so early as the time of Bracton, and since declared in statute 24 Hen. VIII. c. 5.' Further on, the same author (top pages 138, 139), treating of excusable homicide, declares that 'homicide in self-defense, or se de-fendo, upon a sudden affray, is also excusable, rather than justifiable, by the English law, and is that whereby a man may protect himself from an assault or the like in the course of a sudden broil or quarrel by killing him who assaults him; and this is what the law expresses by the words "chance, " "medley." It is frequently difficult to distinguish this species of homicide from that of manslaughter; but the true criterion between them seems to be this: When both parties are actually combating at the time the mortal stroke is given, the slayer is then guilty of manslaughter; but if the slayer has not begun the fight, or (having begun) endeavors to decline any further struggle, and afterwards, being closely pressed by his antag-

[181 S.E. 214]

onist, kills him, to avoid his own destruction, this is homicide excusable by self-defense.' Sir Matthew Hale, in his Pleas of the Crown (chapter 40), makes and preserves the same distinction. Later common-law writers--Russell, Chitty, Wharton, Bishop, and all others, so far as we have investigated--draw the same distinctions, from which it is evident that the compilers of our Penal Code, in the separation of these two classes of homicide, meant to continue the distinctions which existed at common law and which were there denominated, respectively, 'se et sua defendo' and 'se defendo, ' as applicable to two different classes of homicide." Thus it was said in Pugh v. State, 114 Ga. 16, 39 S. E. 875, 876, that: "The law embraced in section 73 of the Penal Code does not qualify or limit the law of justifiable homicide" as laid down in sections 70 and 71 of that Code. The section first mentioned applies exclusively to cases of self-defense from danger to life arising during the progress of a fight wherein both parties had been at fault."

The answer to the first question stated would therefore seem to be: "The law embodied in the above quoted section of the Penal Code should be given in charge only when, from the facts and circumstances of the case, the jury would be warranted in finding that the homicide was committed in mutual combat, begun and carried on in hot blood, thus rendering both parties blamable." Dorsey v. State, 110 Ga. 331-333, 35 S. E. 651, 652. See, also, Wheeler v. State, 112 Ga. 43, 37 S. E. 126; Moultrie v. State, 112 Ga. 121, 37 S. E. 122; Little v. State, 150 Ga. 728, 105 S. E. 359; Brown v. State, 151 Ga. 497, 107 S. E. 536; Lamp v. State, 164 Ga. 57, 137 S. E. 765. "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, are not applicable to a case where there has been no mutual combat, and where the defense relied upon is that contained in sections 70 and 71 of the Penal Code." Stubbs v. State, 110 Ga. 916, 36 S. E. 200. See, also, Mell v. State, 112 Ga. 78, 37 S. E. 121; Holland v. State, 3 Ga. App. 465, 60 S. E. 205; McCray v. State, 134 Ga. 416, 417, 68 S. E. 62, 20 Ann. Cas. 101; Morgan v. State, 152 Ga. 537, 110 S. E. 286; Jones v. State, 172 Ga. 500, 158 S. E. 44. Where there is no evidence of mutual combat at the time of the homicide, it is error for the trial judge to give section 73 in charge to the jury. James v. State, 123 Ga. 548, 51 S. E. 577; Delegal v. State, 109 Ga. 518-524, 35 S. E. 105; Freeman v. State, 112 Ga. 48 (3), 37 S. E. 172. In order for section 73 to be applicable, in other words, in order for mutual combat to exist, there must be a mutual intent to fight, on the part of both parties. Sanders v. State, 26 Ga. App. 475, 106 S. E. 314. It is not necessary that mutual blows be exchanged (Pollard v. State, 124 Ga. 100, 52 S. E. 149; Buchanan v. State, 153 Ga. 866, 113 S. E. 87), nor is it material who strikes the first blow or fires the first shot, nor is it necessary that both parties strike blows or fire shots. Johnson v. State, 173 Ga. 734, 161 S. E. 590. This intent, "like any other intent, may be manifested by the acts and conduct of the...