Plymel v. State , 164 Ga. 677 ( 1927 )

Atkinson, J.

1. On the trial of a person charged with murder, where the evidence shows that the defendant killed the deceased as alleged in the indictment by shooting him with a pistol, evidence that the defendant shot the deceased because “he was coming on to him with his knife,” in connection with other evidence that deceased approached to within striking distance when the shot was fired, was sufficient to authorize a charge upon the subject of voluntary manslaughter, on the basis of passion produced by an assault, as ruled in Williams v. State, 125 Ga. 302 (54 S. E. 108), and cit., and Brown v. State, 144 Ga. 216 (87 S. E. 4).

2. On the trial of a case of the character just indicated, the defendant in his statement before the jury said in effect that on the day of the homicide and within one or two' hours before its commission he had been informed that the deceased had circulated a report that he was in the habit of having adulterous intercourse with the wife of the defendant whenever he desired, and it was doubtful whether her youngest child was his or the defendant’s-; and that when called upon to face the persons who had informed the defendant about the circulation of the report, the deceased stated to the defendant “You have been talking and telling damn lies on me, too, and I am damn tired of it,” and “started on” the defendant with a knife, and the defendant fired the fatal shot when he saw that the deceased “meant to hurt” him. Reid:

(a) The circulation of the report attributed to the deceased in the defendant’s statement before the jury was not sufficient to authorize a charge upon the subject of voluntary manslaughter, under the principle ruled'in Richardson v. State, 70 Ga. 825 (2), relating to passion based on discovery of debauchery of the defendant’s wife, followed in Patterson v. State, 134 Ga. 264 (2) (67 S. E. 816).

(h) The recitals of fact by the defendant differ from those involved in the eases of Richardson v. State, and Patterson v. State, supra, which did not relate to the mere circulation of a report.

(c) The language in the defendant’s statement attributed to the deceased, “You have been talking and telling damn lies on me too, and I am damn tired of it,” and in connection therewith the facts as stated by the defendant that the deceased “started on me with a knife,” and defendant shot because he saw that the deceasd “meant to hurt” him, were sufficient to authorize a charge on the subject of voluntary manslaughter, under the principle stated in the first division of this decision.

3. Complaint is made, in the motion for a new trial, of an instruction by the court as to the form of the verdict, wherein the jury were told that only three forms of verdict could be returned: (1) Finding the defendant “guilty,” which without more would carry the penalty of death. (2) A verdict of guilty, with recommendation to the mercy of the court, which would carry punishment by confinement in the penitentiary for life. (3) A verdict of not guilty. The complaint is that this instruction eliminated from the consideration of the jury the question of voluntary manslaughter, and that the judge nowhere instructed the jury as to the form or' effect of a verdict finding the defendant guilty of voluntary manslaughter, although he gave in charge to 'the jury the sections of the code relating to the subject of voluntary manslaughter. Reid: As it has been ruled above that voluntary manslaughter was involved in this case, it was error to instruct the jury, relatively to the form of the verdict, as above indicated, because the effect of the charge was to eliminate the defense of voluntary manslaughter.

4. The judge read to the jury section 65 of the Penal Code. Complaint is made of giving the following part of the section: “Provocation by words, threats, menaces, or contemptuous gestures shall in no case free the person killing from the guilt and crime of murder.” The ground of complaint is that the judge did not charge further, or at least call the attention of the jury to the, fact, that “while words, threats, menaces, or contemptuous gestures will not mitigate the offense, . . nevertheless, words, threats, menaces, or contemptuous gestures may justify a killing, if the circumstances be such as reasonably to arouse the fears of a reasonable man that a felony or serious personal injury is about to be committed upon him.” There is no merit in this criticism. The judge was charging only upon voluntary manslaughter, and not upon the subject of justifiable homicide as based on the doctrine of reasonable fears. The matters of voluntary manslaughter and justifiable homicide are separate and distinct, and it is permissible under the statute to give in charge the language excepted to in this ease while instructing the jury upon the subject of voluntary manslaughter. This was stated in Clay v. State, 124 Ga. 795 (53 S. E. 179). In a subsequent portion of the charge the judge charged appropriately on the subject of justifiable homicide as related to the doctrine of reasonable fears.

No. 5739. September 8, 1927.

5. Another ground of the motion for new trial complains because, after giving the definition of murder as contained in section 60 of the Penal Code, the judge in a subsequent part of the charge again defined murder. The criticism was that repetition of the charge tended to unduly impress on the jury “the law of murder,” and amounted to an expression of an opinion that “the accused was guilty of murder,” and indicated to the jury that the court “believed the defendant guilty and wanted him convicted.” The charge was not erroneous for the reason assigned.

6. Another ground complains because, after defining justifiable homicide and charging upon the subject of fears as indicated above, the judge in a subsequent portion of the charge repeated the instruction employing the exact language in each instance. The ground of criticism was that repetition of the charge tended to impress upon the minds of the jurors that the homicide in this case was committed under a “bare fear,” and amounted to an expression of opinion by the court upon that subject.’ The charge was not erroneous for the reason assigned.

7. As the case will be remitted to the trial court for another trial, no ruling will be made on the sufficiency of the evidence to support the verdict. Judgment reversed.

All the Justices concur. W. D. Buie and Jeff S. Story, for plaintiff in error. George M. Napier, attorney-general, E. 0. Morgan, solicitor-general, T. B. Gress, assistant attorney-general, W. A. Smith, and J. E. Eull, contra.

Criminal Law, 16 O. J. p. 968, n. 95; p. 1036, n. 58; p. 1040, n.’ 88; p. 1047, n. 65; p. 1050, n. 84; 17 C. J. p. 203, n. 85, 87; p. 345, n. 41.

Homicide, 29 C. J. p. 1123, n. 41; p. 1135, n. 77; 30 C. J. p. 36, n. 94 New; p. 364, n. 83; p. 365, n. 85; p. 367, n. 11; p. 380, n. 91; p. 406, n. 17; p. 407, n. 21; p. 411, n. 52; p. 418, n. 1; p. 449, n. 79; p. 451, n. 20.