Wilkerson v. State, 36696

• Decision Date: 17 May 1957
• Docket Number: No. 36696,No. 2,36696,2
• Citation: 98 S.E.2d 587,95 Ga.App. 756
• Parties: Evelyn WILKERSON v. The STATE
• Court: Georgia Court of Appeals

Page 587

98 S.E.2d 587

95 Ga.App. 756

Evelyn WILKERSON v. The STATE.

No. 36696.

Court of Appeals of Georgia, Division No. 2.

May 17, 1957.

Syllabus by the Court

1. A jury in criminal cases may believe a part only of conflicting sworn testimony, and combine this with a part only of the defendant's statement. If, after so doing on a murder trial, there is anything deducible which would tend to show that the defendant is guilty of manslaughter, or which would be sufficient to raise a doubt as to whether the homicide is murder or voluntary manslaughter, the jury should be instructed as to the law of voluntary manslaughter.

2. That the victim is himself pursuing an unlawful course of action is not necessarily a justification for homicide. The requested charge, to the effect that the victim and his wife, in keeping the defendant's children in their home at the request of their son, the estranged husband of the defendant, were following an unlawful and unjustifiable course of action, although warranted by the evidence, would not benefit the defendant as against a verdict of voluntary manslaughter, and accordingly failure to give the requested charge is not reversible error.

Evelyn Wilkerson was indicted in the Superior Court of Emanuel County for the murder of her husband's father, Charlie Shealy, and was convicted of voluntary manslaughter. The evidence shows that the defendant's husband, Albert Wilkerson, left his wife, taking with him their infant child and another child whom they had been seeking to adopt, and placed these children in the care of his parents with instructions that the defendant was not to see them; that the defendant located the children and attempted on one occasion to enter the house and get them but was denied access to her children. The defendant contended that on this occasion the grandfather, Shealy, threatened her with a pistol and that she was beaten and bruised, but this was denied by the other witnesses present. Two days later the defendant returned with her father, the coindictee Allen Cross, and her grandfather. She and her father talked with Shealy across a picket fence gate. Then, according to the witnesses for the State, the defendant went around the automobile, came back with a shotgun, told Shealy to 'get to walking', pointing it at him, told him to stop and turn around after he had gone about five steps, and, as he turned around, shot him in the abdomen, from which wounds he died. After being shot, according to these witnesses, the deceased took a pistol from his hip pocket, using both hands; crawled back to the house, and then took a shotgun which was handed him when he reached the porch, but he was unable to fire either of these weapons and the defendant with her party drove away and returned to town where they surrendered themselves to the sheriff.

The defendant, her father and Shealy conducted the first part of their conversation at the gate in tones too low for those on the porch to hear what was said. The defendant's father testified: that the defendant and her husband had sparated several times; that the husband would take the children off and Evelyn would go and get them; that she was very upset by these episodes; that on the occasion in question she was afraid they would be taken off where she would be unable to locate them; that he and the deceased talked across the fence in a friendly manner in the defendant's presence; that he then said: 'I don't guess you would want Evelyn to see her children now from what I have been hearing,' to which Shealy replied, 'No I had rather not'; that Shealy then turned back to the house and the witness turned toward the car when he heard the defendant say, 'Drop that gun,' and looked around to see Shealy holding a pistol in both hands, and just after that the defendant fired. The defendant's grandfather sitting in the parked automobile did not hear the conversation but testified as follows: 'This old gentleman [the deceased] come walking to the gate, just as friendly apparently as we are. * * * They talked there some three or four minutes. * * * Evelyn said something or another to him I reckon that hurt his feelings but anyhow he stepped back from the gate a little, some two or three steps, and stopped and that is when he pulled out his pistol. Backed off from the gate some two or three or four steps and he pulled his pistol and when he pulled it it looked like he pulled it with both hands * * * he had it in both hands. * * * The next thing I knowed was Evelyn had the gun and spoke to him something or another, I don't know what, but the old man turned around, started to turn, but he throwed that pistol up that was again and Evelyn throwed that gun on him and his hands were done dropped down, he done give out the idea not to shoot. He dropped his hands down, both of them together. * * * Evelyn asked him to put it down or throw it down or something or another I reckon, he turned around, he didn't throw it down, turned half around or something like that and he turned right back again and about that time Evelyn was there with the gun and shot him.'

The defendant was convicted of voluntary manslaughter. Her motion for a new trial as amended was denied, and this judgment is assigned as error.

Rountree & Rountree, Price, Spivey & Carlton, Swainsboro, for plaintiff in error.

W. H. Lanier, Sol. Gen., Metter, J. W. Claxton, Wrightsville, for defendant in error.

TOWNSEND, Judge.

Special ground 1 and 3 of the motion for a new trial contend that the issue of voluntary manslaughter is not in the case. In this connection Code, § 26-1007 provides as follows: 'In all cases of voluntary manslaughter, there must be some actual assault upon the person killing, or an attempt by the person killed to commit a serious personal injury on the person killing, or other equivalent circumstances to justify the excitement of passion, and to exclude all idea of deliberation or malice, either express or implied. Provocation by words, threats, menaces, or contemptuous gestures shall in no case be sufficient to free the person killing from the guilt and crime of murder. The killing must be the result of that sudden, violent impulse of passion supposed to be irresistible; for if...