Stewart v. State , 180 Ga. 273 ( 1935 )

Atkinson, Justice.

1. Where on the trial of a person charged with murder the evidence or the prisoner’s statement is sufficient to show mutual combat between the deceased and the accused at the time of the homicide, the judge may properly give in charge to the jury the provisions of the Penal Code (1910), § 73 (Code of 1933, § 26-1014). Mutual combat sufficiently appears in the instant case to require a charge upon the law of voluntary manslaughter as related to the theory of mutual combat. Prom the evidence as a whole the jury could have determined that Dékle stood in the road and refused to allow the defendant and his companions on their way home to pass, and applied epithets to them and threatened to kill them, having a pistol with which he could have carried his threat into execution; that in the circumstances the defendant and his party returned to the home of Jim Jones, where the defendant procured a pistol, and with his party started on their return home by the same way, expecting again to encounter Dekle on the road; that Dekle was at the place where they had left him, and upon their arrival he repeated his previous hostile conduct towards them, which produced a fight between Dekle and the defendant, in which both used their weapons and Dekle was killed without malice or deliberation. In this view of the evidence, in which the jury were not restricted to evidence offered by one side or the other, but could look to all of the evidence to ascertain the truth, the judge erred in failing to charge the law of voluntary manslaughter as related to the theory of mutual combat. Bailey v. State, 148 Ga. 401 (96 S. E. 862); Butt v. State, 150 Ga. 302 (2) (103 S. E. 466); Ison v. State, 154 Ga. 408 (114 S. E. 351); Wall v. State, 126 Ga. 549 (55 S. E. 484); Dennis v. State, 93 Ga. 303 (20 S. E. 315).

2. As a reversal will result from the foregoing ruling, it becomes unnecessary to deal with the special, grounds of the motion for a new trial having reference to alleged newly discovered evidence.

Judgment reversed.

All the Justices concur, except Gilbert and Bell, JJ., who dissent.