Stowe v. State

• Decision Date: 05 August 1935
• Docket Number: Nos. 24332, 24334, 24333.,No. 24970.,24970.,s. 24332, 24334, 24333.
• Citation: 51 Ga.App. 726,181 S.E. 419
• Parties: STOWE. v. STATE. DEVERO. v. ATLANTIC COAST LINE R. CO. (two cases). ATLANTIC COAST LINE R. CO. v. DEVERO.
• Court: Georgia Court of Appeals

51 Ga.App. 726

181 S.E. 419

STOWE.

v.STATE.

DEVERO.

v.ATLANTIC COAST LINE R. CO.

(two cases).

ATLANTIC COAST LINE R. CO.

v.DEVERO.

No. 24970.

Nos. 24332, 24334, 24333.

Court of Appeals of Georgia,

Division No. 1.

Aug. 2, 1935.

Aug. 5, 1935.

Rehearing Denied Sept. 19, 1935.

Syllabus by Editorial Staff.

Error from Superior Court, Bibb County; W. A. McClelland, Judge.

Cleatrice Stowe was convicted of voluntary manslaughter, and she brings error.

Affirmed.

Thomas A. Jacobs, Jr., of Macon, for plaintiff in error.

Chas. H. Garrett, Sol. Gen., of Macon, for the State.

Syllabus opinion by the Court

GUERRY, Judge.

1. The jury were authorized to find, from the evidence submitted, that accused and the deceased entertained a mutual in-tent to fight, and did engage in mutual combat in pursuance of this intention, the accused having a gun and the deceased a knife, and that during the rencounter the deceased was mortally wounded by a charge from the pistol held by the accused. A verdict of voluntary manslaughter was therefore amply authorized. It would have been error, harmful to the accused, had the judge failed to charge the jury the law of manslaughter as related to mutual combat. See Code of 1933, § 26-1007; Hart v. State, 135 Ga. 356, 69 S. E. 530; Findley v. State, 125 Ga. 579, 54 S. E. 106; Waller v. State, 100 Ga. 320, 28 S. E. 77; Dor-sey v. State, 110 Ga. 331, 35 S. E. 651; Gann v. State, 30 Ga. 67.

2. Where in a criminal trial the judge fully and fairly charged the jury concerning the law of reasonable doubt, he was not bound to give a requested instruction, in effect, that if the jury had a reasonable doubt as to the existence of some particular and specially enumerated fact, or what should be the proper inference therefrom, it would be their duty to give the accused the benefit of such doubt. Mc-Duffie v. State, 90 Ga. 786, 17 S. E. 105; Campbell v. State, 144 Ga. 224, 87 S. E. 277, and cit.; Little v. State, 166 Ga. 189, 142 S. E. 674; Watkins v. State, 18 Ga. App. 60, 88 S. E. 1000; Tolbert v. State, 127 Ga. 827, 56 S. E. 1004; Delk v. State, 92 Ga. 453, 17 S. E. 269; Williams v. State, 123 Ga. 138, 51 S. E. 322.

3. In the absence of a timely and appropriate written request, it is not error, in charging upon the law of voluntary manslaughter as contained in the Code of 1933, § 26-1007, to fail to qualify the statement that "provocation by words, threats, menaces, or contemptuous gestures shall in no case be sufficient to free the person killing from the guilt and crime of murder, " by presenting also the principle that words, threats, or menaces under the facts of the case might be sufficient to arouse the fears of a reasonable man that his person was in apparent danger of a felonious attack or that his life was in danger. Hartley v. State, 168 Ga. 296, 147 S. E. 504; Rawls v. State, 160 Ga. 605, 128 S. E. 747; Deal v. State, 145 Ga. 33, 88 S. E. 573; Vernon v. State, 146 Ga. 709, 92 S. E. 76; Brown v. State, 36 Ga. App. 83, 135 S. E. 513.

4. "In the trial of one indicted for murder, where the evidence adduced to establish the homicide presents two conflicting theories of fact, one based upon cir cumstances indicating malice and the other upon warranted inferences which negative its existence, then it becomes a question of fact, to be decided by the jury, as to which one of these inconsistent theories is in accord with the real truth of the occurrence. In such a case it is proper to charge the jury that the law presumes every homicide to be malicious, until the contrary appears from circumstances of alleviation, of excuse, or justification, and that it is incumbent on the prisoner to make out such circumstances to the satisfaction of the jury, unless they appear from the evidence produced against him." Mann v. State, 124 Ga. 760, 53 S. E. 324, 4 L. R. A. (N. S.) 934.

5. In the trial of a murder case, where both the state and the accused contend that the shooting was intentional, the state contending that the shooting amounted to murder and was without provocation, and the defendant contending that the shooting was done in self-defense, it was not error to fail to charge the jury the law in reference to shooting at another. Nor was it error to fail to charge on the law of involuntary manslaughter or assault and battery. Nothing ruled in Watson v. State, 116 Ga. 607, 43 S. E. 32, 21 L. R. A. (N. S.) 1, is contrary to this ruling.

6. For no reason was the following charge of the court error: "Now a reasonable doubt is just what the term implies. It is a doubt based upon reason, a doubt for which you can give a reason. It is not a whim, fancy, conjecture, or supposition that the defendant might be innocent, but it is such a doubt as a reasonable man would have, entertain, act upon, or decline to act upon in a matter of importance and of grave concern to himself."

6. The court gave the following charge to the jury: "If you believe that the defendant did kill the deceased, but that in so doing she was not actuated by malice, as I have said--that she was actuated by the sudden impulse of passion supposed to be irresistible, then your verdict would be that of voluntary manslaughter." The error assigned upon this charge is the omission of the word "unlawfully" after the word deceased. In view of the charge as a whole, this assignment does not present reversible error. See Cox v. State, 64 Ga. 374, 37 Am. Rep. 76; Parker v. State, 51 Ga. App. 295, 180 S. E. 390. It appears from the record in Howell v. State. 162 Ga. 14, 134 S. E. 59, that this identi-cal question was raised, and the Supreme Court held that the exception was without merit.

7.None of the remaining assignments of error require discussion. Under the above principles, the court did not err in overruling the motion for new trial.

Judgment affirmed.

BROYLES, C. J, and MacINTYRE, J., concur.

Court of Appeals of Georgia, Division No. 2.

Rehearing Denied Sept. 5, 1935.

Syllabus by Editorial Staff.

Error from Superior Court, Bryan County; J. T. Grice, Judge.

Petitions by Myrtle Devero and by Lon-nie Devero against the Atlantic Coast Line Railroad Company. To review judgments dismissing their petitions on demurrers, plaintiffs bring error, defendant filing a cross-bill of exceptions.

Reversed on main bills of exceptions in both cases, and affirmed on cross-bill of exceptions in the case involving Myrtle Devero.

W. F. Mills, of Hinesville, and Oliver & Oliver, of Savannah, for plaintiffs in error.

Abrahams, Bouhan, Atkinson & Lawrence, of Savannah, for defendant in error.

Syllabus Opinion by the Court.

JENKINS, Presiding Judge.

1. The controlling questions in the separate main bills of exceptions by a wife and her husband from separate judgments dismissing their separate petitions on general and special demurrers being identical, the cases are determined together. In the case of the wife the cross-bill of exceptions of the defendant is first determined, since it presents a question which might be wholly decisive of the case. The rule recognized in a previous adjudication in that case, that a judgment rendered in vacation, sustaining a demurrer without the passing of any order in term time setting the hearing, is void (see Atlantic Coast Line R. Co. v. Devero, 48 Ga. App. 800, 173 S. E. 865), was not made inoperative by any agreement or estoppel against the plaintiff as to the determination of the cause in vacation. The court therefore did not err in thereafter denying the motion of the defendant to make the previous judgment sustaining the demurrers to the petition in vacation the present judgment of the court, and in passing upon the demurrers de novo.

2. A railroad company cannot be held liable for injuries received by a passenger while being transported over the company's lines by virtue of a gratuitous pass, which exempted the company from liability for injuries caused by ordinary negligence, unless the injuries were inflicted willfully and wantonly. To authorize a recovery against the company by such a person, it must appear that the conduct of the defendant was such as to evince a willful intention to inflict such an injury, or else was so reckless or so charged with indifference to the consequences, where human life, limb, or health was involved, as to justify the jury in finding a wantonness equivalent in spirit to actual intent. Fors-ter v., Southern Ry. Co., 39 Ga. App. 216, and cit, 146 S. E. 516; Lanier v. Bugg, 32 Ga. App..294, 123 S. E. 145; Central of Georgia Ry. Co. v. Moore, 5 Ga. App. 562 (1), 565, 63 S. E. 642; King v. Smith, 47 Ga. App. 360, 364(2), 170 S. E. 546. In the instant suit by the wife of an employee of the railroad company, the petition alleged that she boarded a train upon a statement by an official of the company that a pass for her travel would be issued and placed in the hands of the conductor of the train, so that she might go to another station to visit her sick husband; that the pass was not left with the conductor, although it was received by the plaintiff through the mail on the day after; that, upon her failure to pay the fare because she had no money, as she explained to the conductor together with the circumstances relative to the pass, he forcibly ejected her from the train at a station at night, after the depot was closed, and while a heavy rain was falling; and that such acts of the company were due to negligence, and also "the willful and deliberate act of said conductor in forcibly ejecting [her] from said train * * * while a rain was falling, there being no place open to [her] at said station." It appears from the record that the belatedly received pass contained the usual exemption against liability for negligence. There was no ground of demurrer attacking the averments for duplicity in combining averments of willful misconduct with averments of ordinary negligence. Accordingly, while the petition failed to state a cause of action in its allegations of ordinary...