Thomas v. State, 24812.

• Decision Date: 27 June 1935
• Docket Number: No. 24812.,24812.
• Citation: 51 Ga.App. 455,180 S.E. 760
• Parties: THOMAS. v. STATE.
• Court: Georgia Court of Appeals

51 Ga.App. 455

180 S.E. 760

THOMAS.

v.STATE.

No. 24812.

Court of Appeals of Georgia, Division No. 1.

June 27, 1935.

Syllabus by the Court.

1. The record does not disclose reversible error on the part of the trial judge in excluding certain indictments found against the deceased.

2. If there exists 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. Under the facts of the present case it was not error so to charge.

3. It was not error for the trial judge to charge the jury on the law of conspiracy.

4. The assignments of error with reference to the admission and rejection of evidence are without merit. There was sufficient competent evidence to support the verdict, and the court did not err in overruling the motion for new trial.

Error from Superior Court, Fannin County; J. H. Hawkins, Judge.

Everett Thomas was convicted of voluntary manslaughter, and he brings error.

Affirmed.

Thos. H. Crawford and William Butt, both of Blue Ridge, for plaintiff in error.

H. G. Vandiviere, Sol. Gen., of Canton, for the State.

GUERRY, Judge.

Everett Thomas and Robert Pelfrey were jointly indicted for the murder of Carl Lawrence. Upon the trial Robert Pelfrey was found not guilty, and Everett Thomas was convicted of voluntary manslaughter. Thomas excepts to the overruling of his motion for new trial. The defendant was a constable, and had on some previous occasions been called to arrest the deceased. It was developed by the evidence that there had been previous trouble between the defendant and the deceased, and that possibly a continuation of the previous differences was in effect. The evidence for the state, given by the brother of the deceased, was to the effect that he and his brother were at a church during night services and had gone down to a spring, and, while returning, met the defendant and Robert Pelfrey, and that without a word being spoken, Robert Pelfrey struck the deceased with some instrument and knocked him down, and, while he was falling, the defendant shot and killed him, and then turned the pistol on the witness and shot at him twice. The evidence for the defendant tended to show that, when the parties met, the deceased picked up a rock and knocked the defendant down, and that the deceased was reaching for another rock, and the defendant, while on one elbow, shot and killed the deceased. There was evidence showing that the deceased a short time previous thereto had prevented defendant from arresting him and had made previous threats against the life of the defendant. There was sufficient evidence to show a probable continuation of bad feeling engendered the year before, as well as some weeks prior to the killing.

1. Error is assigned upon the refusal of the court to allow in evidence certain indictments returned against the deceased, charging him with assault with intent to murder against the defendant. From the state of the record this court is unable to determine when these indictments were returned, and whether or not, even if they were otherwise admissible, such indictments have any obvious connection with the killing in the present instance.

See, in this connection, Daniel v. State, 103 Ga. 202, 29 S. E. 767. The court admitted other evidence which may have thrown light on the transaction; the rule being that laid down in ...