Smith v. State, 24180.

• Decision Date: 05 November 1934
• Docket Number: No. 24180.,24180.
• Citation: 50 Ga.App. 105,177 S.E. 76
• Parties: SMITH. v. STATE.
• Court: Georgia Court of Appeals

50 Ga.App. 105

177 S.E. 76

SMITH.

v.STATE.

No. 24180.

Court of Appeals of Georgia, Division No. 1.

Nov. 5, 1934.

Syllabus by the Court.

There is evidence in this case which raises a doubt as to the intention of the defendant to kill, and the court committed reversible error in failing, without request, to charge the law of involuntary manslaughter in the commission of an unlawful act.

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

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

Reversed.

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

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

MacINTYRE, Judge.

The indictment in this case charges that on December 24, 1933, in Wilkes county, Ga., Jim Smith committed murder by "striking Tucker Smith with a certain rock, and thereby inflicting upon the said Tucker Smith a mortal wound." Having been convicted of voluntary manslaughter, the defendant moved for a new trial upon the general grounds and certain special grounds. He excepts to the overruling of the motion.

The ninth special ground avers that the court erred in failing to charge "the law relative to involuntary manslaughter in the commission of an unlawful act." There having been no timely written request that such a charge be given, the question for determination is whether the evidence required the charge. See Parks v. State, 105 Ga. 248, 31 S. E. 580; Cain v. State, 39 Ga. App. 128, 133, 146 S. E. 340. Of course, the very essence of involuntary manslaughter is "the killing of a human being without any intention to do so." Pen. Code 1910, § 67. "There can be no involuntary manslaughter where the intention is to kill. If there is any evidence to raise a doubt, even though slight, as to the intention to kill, the court should give in charge the law of involuntary manslaughter, but if there is nothing to raise such a doubt, the failure to charge on that subject will not require a new trial." Jackson v. State, 76 Ga. 473 (3). See, also, Crawford v. State, 12 Ga. 142 (6); Griffin v. State, 18 Ga. App. 462 (5a), 89 S. E. 537; Cain v. State, 39 Ga. App. 12S (2), 146 S. E. 340; Jackson v. State, 43 Ga. App. 468, 159 S. E. 293; Miller v. State, 46 Ga. App. 6S5, 168 S. E. 917; Thomas v. State, 47 Ga. App. 237, 239, 170 S. E. 303; Freeman v. State, 158 Ga. 369 (2a), 123 S. E. 126.

Let us then see if there is any evidence in the case that raises a doubt as to the intention to kill. At about 11 or 11:30 o'clock on the night of December 24, 1933, the defendant struck and killed his father, Tucker Smith, with what appears to have been a rock. The trouble appears to have started when the defendant either cursed in the presence of his mother, Maggie, or cursed her. We quote from the testimony of Toombs Walton, the only eyewitness to the tragedy: "Tucker told him if he had to curse Maggie, he would have to get out. Jim told him he could get out; * * * he got out. His daddy raised up to get the gun before he went out. * * * It was a double-barrel gun. Tucker got the gun after Jim had cursed his mother. Jim did not go out of the house right then. I taken the gun away before he did. * * * Tucker got Jim's clothes and come to the porch and throwed them out to him. * * * When Tucker carried Jim's clothes to the perch, Jim threw a rock. The first rock, he missed, and the second rock, he hit him in the left side and he fell out of the porch. * * * I could see Jim when he threw the rocks. He did not hit him when he threw the first rock. The rock he hit him with was a good size. * * * I went to Tucker and put him in the car. Jim come to help, and there was nothing he could do. * * * Jim said, 'God damn it, ain't nobody going anywhere. * * * What have I done?' * * * I waited about thirty minutes before I left. As to why I did not bring him to the doctor promptly, I did not want me and Jim to get into anything."

On cross-examination, the witness Walton testified in part as follows: "The gun was not loaded. * * * I took the gun awayfrom Tucker and hid it under the house. After that they were in the hall, Jim and Tucker; I left them there in the dark. When I came back Jim was coming out, and I went in the house. Tucker had the clothes. I come on out too. * * * I could not see any rock at the time. I did not know he was going to throw until he had throwed. When he throwed the first rock I heard it hit the house, and the next rock hit his papa and he fell out of the door. If Tucker had anything in his hand, I could not have seen it from where I was. * * * Tucker was killed on Sunday night. Maggie asked me to come back over there Monday morning, and I went over there, * * * and she picked up a piece of razor where I picked him up. She picked it up where Tucker fell. * * * She ain't got nothing but the blade. I did not see Tucker cut Jim with that razor. I saw the rock. One of the rocks was on the porch; the one what hit him, I reckon it bounced off. I don't know whether the one I saw was the one that hit Tucker. One rock was on the porch, and one on the ground; I don't know which one hit him. * * * I am satisfied a rock hit him; I know it. It was dark. I knew he threw a rock the first time, but I don't know what he threw the last time. The rock I saw on the porch did not have any blood on it. The one in the yard had blood on it. I don't know where that blood came from. * * * I did not go because my mother-in-law (Maggie) asked me not to leave then. She told me that Tucker was mad." Upon redirect examination, Walton testified: "That house was located in Wilkes county, Georgia. * * * The razor was at the steps where the man fell. * * * He threw the clothes out in the yard. The razor was between the steps and the clothes."

Dr. O. S. Wood, who examined Tucker Smith shortly after the homicide, testified: "Tucker Smith was dead. * * * I found a crush wound in the region of the heart, with a break of the sixth, seventh, and eighth ribs, in a space of three or four Inches. I found him with a bloody nose and mouth. He had blood on some of his clothes. The lick on the left side would have caused his death. That was a mortal wound." The doctor further testified: "I saw Jim Smith that night. * * * I did not see any cut on his neck. * * * This man wanted me to examine him. * * * His shirt had some blood on it. He had some blood on the side of his collar. I think he had a scratch around his face. It looked like a blood-cake; it was not a cut. * * * I saw that abrasion. He could have butted into something and got that. Somebody could probably have hit him and done that with his fist. He could have hit him with a stick and done it, but it would have been a mighty small stick. * * * I did not pull his collar down."

G. H. Lunceford testified: "I arrested Jim Smith the night that Tucker Smith was killed. I saw a cut on him that night; he had a little bump on top of his head. I did not see any other place where he was cut. There was some blood on his shirt He did not tell me that night he was cut I asked him why he killed his daddy, and he said him and his mother got in it and he cursed her out, and him and his daddy got into it and he threw a rock at him. * * * I found him at home in bed at the same place of the killing. * * *"

We quote as follows from the defendant's statement to the jury: "When he grabbed the gun, I went on out, and they took the gun away from him. He come out and grabbed me. He cut me on the head and cut me on the neck, and he cut my collar all to pieces, and I hit him with a rock. I was not trying to kill him; I was trying to make him turn me loose--he was killing me. There is where he cut me on the neck. My collar was buttoned up, and that is the reason the doctor did not see it"

In Jordan v. State, 124 Ga. 780, 53 S. E. 331, the defendant hit a fleeing woman with a rock that "might be as big as her fist" The woman fell, and an examination disclosed that the third vertebra was broken. The jury found the defendant guilty of...