Warnack v. State
| Docket Number | 907. |
| Decision Date | 11 February 1908 |
| Citation | 60 S.E. 288,3 Ga.App. 590 |
| Parties | WARNACK v. STATE. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
The assignments of error on the charge relating to sections 70, 71, and 73 of the Penal Code of 1895 are fully controlled by the decisions of this court in Lightsy v. State, 2 Ga.App. 442, 58 S.E. 686, and Holland v. State (decided January 26, 1908) 60 S.E. 205.
Where the evidence and the statement, taken together or separately raise a doubt, although slight, as to the intention to kill the law of involuntary manslaughter should be given in charge; and, where the act from which death results may or may not be lawful under the facts, both grades of the law of involuntary manslaughter should be given in charge.
[Ed Note.-For cases in point, see Cent. Dig. vol. 26, Homicide §§ 649-656.]
Brothers have the right of mutual protection under the law.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 26, Homicide, §§ 177-181.]
The right which the law gives to a brother to defend a brother when in peril, and, if need be, to take life in such defense, does not necessarily depend on whether the brother himself is blameless or at fault. If the brother who interposes is himself blameless in connection with such attack, his right to interpose may be justified by a real or apparent necessity presented by the facts and circumstances as they appear to him at the moment of his interposition in behalf of his brother.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 26, Homicide, §§ 177-181.]
Error from Superior Court, Whitfield County; A. W. Fite, Judge.
Claude Warnack was convicted of voluntary manslaughter, and brings error. Reversed.
Where the evidence and the statement raise a doubt, though slight, as to intent to kill, the law of involuntary manslaughter should be given, and, where the act from which death results may or may not be lawful under the facts, both grades of the law of involuntary manslaughter should be given in the charge.
Claude Warnack was indicted for murder, and on his trial was convicted of voluntary manslaughter. The state introduced one witness to the homicide, who testified in substance as follows: Claude and Jim Warnack were brothers, and, on the day of the homicide, were at work on the farm of Chess Wilson, the deceased. They had hauled up from the fields and delivered the portions of the corn belonging to the defendant and the deceased. The wagon belonged to the deceased, and they asked him if they could have the use of the wagon to haul Jim's portion of the corn to the Caylors, about a mile distant. Both brothers were sitting on the wagon when the request was made, and a fence was between them and the deceased. The deceased refused at first to let them have the wagon, but, after a few words, consented to let them have it, provided they would pay him for the use of it, saying that "it cost something to keep a team." Jim replied that "it didn't cost anything to be a damn rascal." The deceased asked "who he was talking to?" he said to him; and then the deceased got over the fence, and, with a plank in his hand, went towards Jim, saying that he had to take that back. Jim got down off the wagon, and they met. The deceased, who was left handed, took hold of Jim by the collar, and, holding the plank in his right hand, declared that Jim had to take back his language. The witness did not know where the deceased got the plank he had in his hand. This plank would weigh about four pounds, was two feet long, and about one inch thick, and six inches wide. "A man could very easily kill another with it." The deceased had Jim in his collar. Jim was not doing anything, and the evidence does not show that he had any weapon or anything in his hands. The deceased was not trying to hit Jim with the plank, but was cursing him, and telling him that he had "to take that back." While the struggle was going on, the defendant, who was sitting on the wagon, without saying anything, took up the brake stick, and, jumping off the wagon, went to them, and hit the deceased with this stick on the head. The blow was from behind the deceased, and was a hard one, the defendant using both hands. The brake stick will weigh about 10 pounds, and is about 7 feet long and 2 inches thick. The lick knocked the deceased down. The witness went to the deceased and raised him up, and asked if he was hurt much. The deceased replied that he thought not. His skull was fractured, and he died from the effects of the blow in eight days. The brothers, immediately after the blow, walked away. The sheriff could not find the defendant for two weeks. He was notified by the defendant's uncle that he was in Knoxville, and he went there, and found him arrested and in jail. There was some evidence, not very strong, that the defendant felt unkindly towards the deceased. The physician who examined the fractured skull testified that the blow could have been given from either in front or behind, though his opinion was that the blow was from behind. Judging from the extent of the injury, the blow was a hard one. The skull of the deceased was not up to the average in thickness.
Jim Warnack, the brother of the defendant, testified in substance as follows: He asked "Chess," the deceased, to lend him his wagon, and Chess replied that he would if he would pay for it, as it cost something to feed a team. The defendant, in his statement, corroborated his brother as to the cause of the difficulty between his brother and the deceased, and said: A motion for a new trial was made on numerous grounds; the material ones being that the court erred in charging section 73 of the Penal Code of 1895, and also in charging that section in connection with and as qualifying sections 70 and 71; the full charge on these points being as follows: Also, that the court erred in not charging the law of involuntary manslaughter; also, in leaving to the jury to decide as a question of law the right of one brother to defend another, or whether such relationship stood upon the...
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