Lewis v. State , 16 Ga. App. 154 ( 1915 )

Wade, J.

1. The evidence as a whole tended to support two theories, and only two: one that the defendant shot the deceased in the back without legal justification or excuse, and was therefore guilty of murder; and the other that he shot solely to protect the life of his sister from the deceased, who had already fired a shotgun at close range at and towards her, and had then unbreached his gun and was attempting to reload it, apparently with the purpose of immediately firing at her again, and hence that the defendant was fully justified.

2. There is no evidence tending to show that the killing was done in the heat of passion, that there was a mutual intention between the accused and the deceased to engage in combat, 'or that the defendant fired the fatal shot to prevent the commission by the deceased of apprehended personal violence upon himself or his sister amounting to less than a felony; and therefore the verdict finding the accused guilty of manslaughter was unauthorized by the evidence, and the court should not have instructed the jury as to the law of manslaughter.

3. Otherwise there was no substantial error. Judgment reversed.

Conviction of manslaughter; from Laurens superior court— Judge Larsen. September 26, 1914.

H. P. Howard, Hal B. Wimberly, for plaintiff in error. B. L. Stephens, solicitor-general, contra.