Tanner v. State

• Decision Date: 01 November 1917
• Docket Number: (No. 9076.)
• Citation: 94 S.E. 67,21 Ga.App. 189
• Parties: TANNER . v. STATE.
• Court: Georgia Court of Appeals

94 S.E. 67

(21 Ga.App. 189)

TANNER .

v.STATE.

(No. 9076.)

Court of Appeals of Georgia,

Division No. 2.

Nov. 1, 1917.

(Syllabus by Editorial Staff.)

Error from Superior Court, Barrow County; Andrew J. Cobb, Judge.

Charlie Tanner was convicted of crime, and he brings error. Affirmed.

See, also, 145 Ga. 71, 88 S. E. 554; 92 S. E. 943.

P. Cooley, of Jefferson, and Lewis C. Russell, of Winder, for plaintiff in error.

W. O. Dean, Sol. Gen., of Monroe, John B. Gamble, of Athens, and O. A. Nix, of Lawrenceville, for the State.

BLOODWORTH, J. [1, 2] Upon his first trial the plaintiff in error was convicted of murder. He obtained a new trial becausethe judge failed to instruct the jury on the theory of manslaughter. Upon his second trial the judge charged upon manslaughter, and a new trial is now asked and error is alleged because such a charge was given. This is the only special ground of the motion for a new trial. It is insisted that the evidence on the first trial showed that the deceased assaulted the defendant with a pair of brass knucks, and that it was not then shown that brass knucks were weapons likely to produce death, but that this was shown in the last trial, and that this differentiates the cases made at the two trials, the evidence in the former case, according to the contention of plaintiff in error, demanding a charge on voluntary manslaughter, and the evidence in the latter not authorizing such a charge. When this case went to the Supreme Court after the first trial that court held:

"If the evidence be sufficient to raise a theory of voluntary manslaughter, a failure to instruct the jury as to the law applicable thereto requires a reversal of the judgment refusing a new trial, (a) Where the evidence presented a theory that after an interchange of words the decedent struck the defendant with a weapon not shown to be deadly, partially knocking him down, and the accused immediately fired upon him with a pistol, inflicting a mortal wound, a charge on the law of manslaughter was applicable." Tanner v. State, 145 Ga. 71, 88 S. E. 554..

the decision shows that the weapon referred to was a pair of brass knucks, not then shown to be deadly. As will be hereafter pointed out, the general principle stated in that decision is applicable to this case, even though there is evidence to show that brass knucks are deadly weapons, and that at the time the deceased was shot he was advancing on the defendant.

In the case of Cain v. State, 7 Ga. App. 24, 65 S. E. 1069, we find the following:

"It is well settled by repeated rulings of the Supreme Court and this court, that on a trial for murder, if there is anything deducible from the evidence or the defendant's statement that would tend to show manslaughter, voluntary or involuntary, it is the duty of the court to instruct the jury fully on the law of manslaughter. Crawford v. State, 12 Ga. 142 (6); Jackson v. State, 76 Ga. 473; Wynne v. State, 56 Ga. 113; Bell v. State, 130 Ga. 865 ; Strickland v. State, 133 Ga. 76 ; Pyle v. State, 4 Ga. App. 811 . In the Crawford Case, supra, the court strongly expresses itself on the subject as follows: When a defendant is put upon trial for murder, and there is any doubt as to the grade of homicide of which he is guilty, it is the duty of the court clearly and distinctly to instruct the jury as to the law, defining the several grades of homicide as recognized by the Penal Code, and then leave it to the jury to find from the evidence of what particular grade he is guilty.' In Jackson v. State, supra, the court uses still stronger language, and holds that 'where there is evidence sufficient to raise a doubt, however slight, upon the point whether the case is murder or manslaughter, voluntary or involuntary, the court should instruct the jury upon these grades of manslaughter as well as murder.' "

In Griffin v. State, 18 Ga. App. 462, 89 S. E. 537 (5), it is said:

"If there be any evidence to create a doubt, however slight, as to whether the offense is murder or voluntary manslaughter, instructions as to the law of both of these offenses should be given. Jackson v. State, 76 Ga. 473, 478; Wayne v. State, 56 Ga. 113. (a) If there is anything deducible from the evidence, or from the defendant's statement at the trial that would tend to show manslaughter, voluntary or involuntary, it is the duty of the court to instruct the jury fully on the law of manslaughter. Cain v. State, 7 Ga. App. 24, 26 , and cases therein cited."

the evidence fails to show that any weapon was found on the person of the deceased, and fails to show that any knucks were seen around the place he fell after he was shot. there are several theories deducible from the evidence and the statement of the defendant that would tend to show manslaughter. One of these is that after an interchange of words and upon sudden provocation the accused and the deceased each drew a weapon, one a pistol the other a knife, and a battle ensued, no undue advantage being sought or taken by either. On...