Stuckey v. State, 19794

• Decision Date: 11 October 1957
• Docket Number: No. 19794,19794
• Parties: John STUCKEY v. The STATE.
• Court: Georgia Supreme Court

Page 189

100 S.E.2d 189

213 Ga. 525

John STUCKEY v. The STATE.

No. 19794.

Supreme Court of Georgia.

Oct. 11, 1957.

Syllabus by the Court

Under the ruling made in division 3 of the opinion, the trial court erred in denying the defendant's motion for new trial.

John Stuckey was convicted of the murder of his son, Hardy Stuckey, and recommended to mercy. He filed a motion for new trial on the general grounds and six special grounds, which was overruled, and to this judgment he excepts.

The evidence was substantially as follows: On the day of the homicide, the deceased and one of his brothers drove to a fishing camp late in the evening looking for the defendant. The deceased said that he had paid for an automobile in which the defendant was riding and that he was going to wait for the defendant and get the car. A short while later, the defendant drove up in the car. A brief conversation took place between the defendant and his two sons, and the deceased said: 'Daddy, I'm going to take that automobile,' and started towards the car. The defendant asked the deceased not to go to the car, and fired into the air two or three times with a pistol. The deceased walked on to the car, the defendant walking along behind. The deceased opened the car door, then closed it and turned around to the defendant, saying 'Daddy, what's the matter with you, have you gone crazy?' The defendant had the pistol in his hand, his arm pointing upward. The deceased grabbed the defendant's arm and jerked it down, the gun fired, the bullet striking the deceased in the chest, causing his death.

D. E. Turk, Turk & Morgan, Abbeville, J. C. McDonald, McDonald & McDonald, Fitzgerald, for plaintiff in error.

Harvey L. Jay, Sol. Gen., Fitzgerald, Eugene Cook, Atty. Gen., Rubye G. Jackson, Atlanta, for defendant in error.

MOBLEY, Justice.

1. In special grounds 1 and 3 it is contended that the trial judge erred in failing to charge the law of voluntary manslaughter, even though no request to charge this principle of law was made. It is contended that the jury was authorized to find that the defendant killed the deceased to prevent the commission of a trespass, in that he was attempting to prevent the deceased from taking the car. There is no evidence to show that the deceased was attempting to commit a felony upon the person or property of the defendant, and even if, as contended, the defendant did kill the deceased to prevent at trespass upon the property not amounting to a felony, it would not be manslaughter but would be murder. In Hayes v. State, 58 Ga. 35, 46, it was held: 'To intentionally kill, with a deadly weapon, one who is committing a trespass upon property, is generally murder, and not manslaughter.' Again, in Parks v. State, 105 Ga. 242, 248, 31 S.E. 580, 583, where as here, it was contended that the killing was accidental and error was assigned upon the failure to charge on voluntary manslaughter, the court held: 'In the present case the accused did not claim that the homicide was the result of passion. On the contrary, it was the theory of his defense, emphasized by his statement, that the killing was not intentional; that he did not know that the object at which he fired was a human being; and it is difficult to see, under the evidence as it appears in the record, how the law of voluntary manslaughter can be made to apply. A man has a right to eject an intruder from his house or premises, and to use such force as is necessary to accomplish that purpose; but a civil trespass on the land or property of another not his dwelling house, is never sufficient to reduce the intentional killing of the trespasser, with a deadly weapon, from murder to manslaughter. Hayes v. State, 58 Ga. 35.' See also Nix v. State, 120 Ga. 162, 163, 47 S.E. 516. While in Crawford v. State, 90 Ga. 701, 707, 17 S.E. 628, the court stated that, if circumstances should show that a killing was the result of a sudden, violent impulse of passion, provoked by a trespass upon property, and acted upon before the passion had time to cool, then such trespass might be said to amount to a reasonable provocation sufficient to justify the excitement of passion and operate to reduce the offense to manslaughter, this was clearly obiter dictum, and in the instant case there is no contention that the defendant acted under a sudden impulse of passion, and the evidence does not support such a theory. We have found no case where a killing merely to prevent a trespass upon property not at the habitation of the defendant, unaccompanied by any other circumstances, has been held to be manslaughter and not murder. A charge on voluntary manslaughter was not authorized by the evidence in this case, and the court did not err in failing to charge thereon.

2. In special ground two error is assigned upon the charge to the effect that the jury should, if possible, reconcile the evidence so as not to impute perjury to anyone, but that if there was an irreconcilable conflict in the evidence then they should believe that which to them appeared most reasonable and worthy of belief under all of the circumstances. This charge did not, as contended, instruct the jury unequivocally that it was their duty to reconcile the evidence so as not to impute perjury to anyone but instructed them that they should do so if possible. See in this connection, Barton v. State, 79 Ga.App. 380, 387, 53 S.E.2d 707. This ground is without merit.

3. In special ground 4 it is contended that the court erred in charging as follows: 'The defendant contends that the shooting of the pistol referred to in this case was accidental and he says he is not guilty, but that if he did the act and caused the pistol to be discharged and caused the deceased to lose his life,...