Strickland v. State

• Citation: 224 S.E.2d 87,137 Ga.App. 419
• Decision Date: 29 January 1976
• Docket Number: No. 2,No. 51552,51552,2
• Parties: T. S. STRICKLAND, Jr. v. The STATE
• Court: Georgia Court of Appeals

Page 87

224 S.E.2d 87

137 Ga.App. 419

T. S. STRICKLAND, Jr. v. The STATE.

No. 51552.

Court of Appeals of Georgia, Division No. 2.

Jan. 29, 1976.

Walters & Davis, W. Emory Walters, Ocilla, for appellant.

H. Lamar Cole, Dist. Atty., Valdosta, Altman, Williamson, McGraw & Loftiss, and Harry Jay Altman, II, Thomasville, for appellee.

MARSHALL, Judge.

The appellant brings this appeal from his conviction for voluntary manslaughter arising out of mutual combat with a resultant sentence of 20 years, 13 years to be served in the penitentiary and 7 years on probation. He enumerates eight alleged errors. Held:

1. In the first four enumerations, appellant complains on general grounds that the trial court erred in denying his motion for a new trial. The record shows that appellant Strickland and the deceased Hatcher were neighbors whose property was adjoining. They had been neighbors for several years before the fatal altercation. Because of an earlier dispute involving appellant's dozen pit bulldogs which he maintained on his property, the two families lived in a strained, hostile relationship, not speaking to each other or allowing their children to associate with each other.

Shortly before the fatal incident, Mrs. Hatcher started a compost pile in the rear of the Hatcher yard but close to Strickland's dog pens. Mrs. Hatcher placed kitchen scraps on the compost pile. Strickland and his wife interpreted the compost pile as the dumping of garbage intended to insult and demean them and their property and in further derogation of the poor esteem with which the Hatchers held their family. Mrs. Strickland became very upset about the 'garbage' and demanded that her husband do something about it.

Though much of this evidence is in conflict, it is uncontradicted that Strickland at about midnight on the night of the shooting, and immediately after seeing the 'garbage' and upon hearing the demand of his wife, called Hatcher on the telephone. The two men agreed to meet on the street outside their adjoining homes. Both men obtained loaded .38 caliber pistols and went outside to the street. Again the evidence is in conflict as to which man fired the first shot or exactly how many shots were fired, but both men fired at or in the direction of the other. The ultimate result was that Strickland was unharmed and Hatcher was struck approximately three times, resulting in his death.

Though in its totality, there were conflicts in the evidence, there was ample evidence to raise the issue of mutual combat and require the trial court to instruct on this type of voluntary manslaughter. Askins v. State, 210 Ga. 532, 538, 81 S.E.2d 471. Moreover, the state of the evidence was such as to warrant the jury to conclude that these two men mutually agreed to some form of combat, and, in view of the evidence, that both men armed themselves with pistols, that the agreement was to engage in combat with deadly weapons.

If, upon a sudden quarrel, the parties agree to a fight, or fetch their weapons and fight, and one of them is killed, such killing is voluntary manslaughter, no matter who strikes the first blow. Sheffield v. State, 188 Ga. 1, 7, 2 S.E.2d 657. A mutual intention to fight need not be proved directly, but may be inferred by the jury from the conduct of the parties. Sapp v. State, 2 Ga.App. 449, 58 S.E.2d 667. 'Being suddenly aroused by anger, and mutually intending to fight, the law of mutual combat is involved. Such combat sufficiently appears where it is shown that there was a mutual intent by the accused and deceased to fight, and one or more shots were fired. It makes no difference who fires the first shot, nor is it necessary that both parties shoot.' Johnson v. State, 173 Ga. 734, 742, 161 S.E. 590, 594. See also: Brannon v. State, 188 Ga. 15, 18, 2 S.E.2d 654.

Where there is conflicting evidence as to the guilt of an accused, the jury is required to determine the issue. If there is evidence of guilt, the jury is authorized to return a verdict of guilty. Carnes v. State, 28 Ga. 192. Strickland claimed he fired only in self-defense. That theory was fully presented to the jury and the claimed justification rejected by the jury. Where there is evidence to support the verdict, it will not be disturbed on appeal. Johnson v. State, 231 Ga. 138, 200 S.E.2d 734; Barrett v. State, 129 Ga.App. 72, 199 S.E.2d 116.

2. In his fifth and sixth enumerations of error, appellant contends the state improperly introduced evidence of other crimes, thereby placing his character into issue without lawful cause. The first occurred when the state adduced testimony from Mrs. Hatcher that a neighbor attempted to approach the motionless and recumbent body of her husband. As the neighbor came close, Strickland allegedly pointed the pistol at the neighbor, Perry, and ordered Perry to stay away. Later Perry was allowed to testify to the same occurrence, as was Perry's wife.

It is the general rule that unconnected crimes not tending to prove any element of the case are inadmissible and prejudicially so as tending to place the character of the defendant in evidence. Bacon v. State, 209 Ga. 261, 71 S.E.2d 615; Fitzgerald v. State, 184 Ga. 19, 190 S.E. 602.

There are exceptions to this rule, as when the extraneous crime forms part of the res gestae or where it tends to prove malice intent, motive. State v. Luke, 232 Ga. 815, 816, 209 S.E.2d 165; King v. State, 230 Ga. 581, 198 S.E.2d 305.

Evidence that Strickland thwarted an attempt to render...