Smith v. State
Citation | 51 Ga.App. 601,181 S.E. 212 |
Decision Date | 02 August 1935 |
Docket Number | No. 24870.,24870. |
Parties | SMITH. v. STATE. |
Court | United States Court of Appeals (Georgia) |
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.
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, 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. "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.
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: .' 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, ...
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