Boatwright v. State , 162 Ga. 378 ( 1926 )

Hines, J.

1. The court gave in charge to the jury the principle of law relating to mutual combat, embraced in the Penal Code, § 73. To this instruction the defendant excepted upon the grounds: (a) that under the evidence mutual combat was not involved, and (b) because the court did not draw the distinction between sections 59 and 73 of the Penal Code, and direct the jury as to the application of the same. Held:

(а) The evidence introduced by the State, if credible, tended to show that the accused was guilty of murder. The statement of the accused to the jury, and the evidence introduced by him, tended, if worthy of credit, to show that the homicide was justifiable. There was some evidence from which the jury might draw the conclusion that the accused and the deceased both drew weapons, the former a pistol and the latter a knife, each being willing and intending to fight, and that the deceased was killed in such rencounter. In these circumstances the court did not err in giving in charge to the jury the principle embraced in section 73 of the Penal Code. Matthews v. State, 136 Ga. 125 (70 S. E. 1110) ; Bailey v. State, 148 Ga. 401 (96 S. E. 862) ; Daniels v. State, 157 Ga. 780 (4) (122 S. E. 222).

(б) The other exception to this charge is without merit.

2. The court charged the jury as follows: “Just here I read you this: ‘If you should find and believe from the evidence that Barney Lunceford, the deceased, had a drawn knife, and it was a weapon likely to produce death, and the deceased was erideavoring to cut the defendant, and you find that the defendant caught and held the cutting hand and arm of Barney Lunceford and prevented Lunceford from cutting him, the law would not require the defendant to continue to hold the hand 'and arm to prevent Barney Lunceford from cutting and committing a felony on the person of the defendant.’ And I also charge you in that connection that if you believe that the defendant shot and killed Barney Lunceford under such circumstances as that, that it must appear that the danger was so urgent and pressing at the time of the killing, that in order to save his own life the killing of the other was absolutely necessary, and it must appear also that the person killed was the assailant, or that the slayer had really and in good faith endeavored to decline further struggle before the mortal blow was given.” The principle embraced in the first sentence of said instruction was embraced in a written request preferred by counsel for the defendant. After reading this request, the court added the principle embraced in the second sentence of the above instruction. To the latter portion of the above instruction the defendant excepted on the grounds: (a) that there was no evidence to authorize that portion of said instruction; and (b) because said portion of said instruction was improper and a wrongful qualification of the doctrine of self-defense and of reasonable fears, as laid down in sections 70 and 71 of the Penal Code, upon which the defendant relied as a justification of the homicide with which he was charged. Held:

(а) Under the ruling made in the preceding headnote, the first assignment of error on said portion of said instruction is without merit.

(б) Where the law of justifiable homicide to prevent the commission of a felony upon the person of the slayer, as embraced in sections 70 and 71 of the Penal Code, is involved, it is error to limit the defense to justifiable homicide in a case of mutual combat as embraced in section 73 of the Penal Code. Where the law of justifiable homicide in cases of mutual combat is involved, the court should instruct the jury that the provisions of section 73 are applicable only in the event the jury find that the accused and the deceased were engaged in mutual combat. Powell v. State, 101 Ga. 9 (6) (29 S. E. 309, 65 Am. St. R. 277); Teasley v. State, 104 Ga. 738 (30 S. E. 938); Pugh v. State, 114 Ga. 16 (39 S. E. 875) ; Little v. State, 150 Ga. 728 (105 S. E. 359).

No. 5349. June 21, 1926.

3. The assignments of error embraced in the other grounds of the motion for new trial are without merit.

4. We grant a new trial in this case because the court erred in limiting the law of justification, as embraced in sections 70 and 71 of the Penal Code, by the law of justification laid down in section 73, and in confusing the law of justifiable homicide laid down in the two former sections with the law of justifiable homicide as embraced in the latter section.

Judgment reversed.

All the Justices concur, Russell, O. J., specially. B. F. Walker, Lawson E. Thompson, and Clement E. Button, for plaintiff in error. George M. Napier, attorney-general, M. L. Felts, solicitor-geueral, T. B. Gress, assistant attorney-general, and Earle Norman, contra.