Tanner v. State

• Decision Date: 12 April 1916
• Docket Number: (No. 338.)
• Parties: TANNER. v. STATE.
• Court: Georgia Supreme Court

145 Ga. 71

88 S.E. 554

TANNER.

v.STATE.

(No. 338.)

Supreme Court of Georgia.

April 12, 1916.

(Syllabus by the Court.)

Error from Superior Court, Barrow County; C H. Brand, Judge.

Charlie Tanner was convicted of murder, and brings error. Reversed.

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

John B. Gamble, Sol. Gen., of Athens, Clifford Walker, Atty. Gen., and Mark Bolding, of Atlanta, for the State.

EVANS, P. J. Charlie Tanner was convicted of the murder of Mark Sells, and recommended to mercy. The testimony for the state tended to show that on the first Saturday in May, 1915, the defendant had gone to a camp ground in a buggy. Some time during the day he fell asleep in the buggy. When he awoke he accused several persons of having stolen whisky from Lis buggy while he was asleep. Among those against whom accusation was made was the decedent, whodenied that he had stolen any whisky, and the defendant shot him with a pistol without any provocation. The defendant immediately fled and was captured by the sheriff in the mountains of north Georgia. The defendant, on the other hand, introduced a witness who testified that the decedent knocked the defendant to his knees with a pair of brass knucks, and as he was getting up he shot the decedent This witness further testified that he heard the decedent and the defendant talking about whisky, but could not understand exactly what was said. No knucks were found, either upon the decedent or in the vicinity where he fell. It appeared that the defendant had a bruise under his eye, which the state contended was inflicted after he killed the decedent and ran away. It was contended by the defendant that the contusion was the result of the blow of the decedent with the knucks.

1. The controlling question in the case is whether the court should have charged the law of voluntary manslaughter. The rule is well settled that, where under the evidence the law of voluntary manslaughter is applicable, it is the duty of the court to charge the law upon that subject Bell v. State, 130 Ga. 865, 61 S. E. 996; Strickland v. State, 133 Ga. 76, 65 S. E. 148. If the evidence on behalf of the defendant be true, it showed an actual assault was committed upon him by the decedent with a weapon not shown to be such as would likely produce death, and that the homicide took place while that assault was in progress; and the law of voluntary manslaughter was involved, and it should have been given in charge to the jury. Dennis v. State, 93 Ga. 303, 20 S. E. 315; Green v. State, 124 Ga. 343, 52 S. EL 431. There was only one shot fired, and a witness for the accused testified that the defendant shot the decedent after having been assaulted with brass knucks. We cannot say as a matter of law that brass knucks is a deadly weapon. There was no evidence tending to show that the knucks was a weapon likely to produce death. If the defendant killed the decedent to prevent the commission of a serious injury less than a felony upon his person, the crime would not be murder, but voluntary manslaughter.

2. In certifying the ground of the motion for new trial complaining of the refusal to charge the law of voluntary manslaughter, the court appended the following certificate:

"During the trial of this defendant, the court called counsel representing him to the stand, and asked them to inform the court whether or not they considered manslaughter in this case, and whether they desired the court to charge on this grade of homicide. This was done, among other reasons, because P. Cooley, Esq., who had made the opening argument for the defendant, took the position before the jury that the...