Davis v. State , 68 Ga. App. 296 ( 1942 )

1. "It is `well settled in this State that a party may contradict his own witness by showing the truth to be different from what the witness testified. Skipper v. State, 59 Ga. 63; Cronan v. Roberts, 65 Ga. 678; McElmurray v. Turner. 86 Ga. 217 Christian v. Macon Railway Co., 120 Ga. 314 (2), 317 (47 S.E. 923). `A jury in arriving at a conclusion upon disputed issues of fact may believe a part of the testimony of a witness or witnesses, and reject another part thereof, it being their duty to ascertain the truth of the case from the opinion they entertain of all the evidence submitted for their consideration.' Sappington v. Bell, 115 Ga. 856 (1) (42 S.E. 233)." Reaves v. Columbus Electric c. Co., 32 Ga. App. 140 (4) (122 S.E. 824).

2. "`The whole question of the credibility of witnesses is wisely left to the jury under any and all circumstances, and, though Ananias and Sapphira spoke again, the law would not strike them dead, but would leave their testimony to be weighed and accepted or rejected by the jury.' This court is therefore powerless to interfere with the verdict of a jury where there is any evidence, however slight, to support it, and regardless of what may be the character of the witnesses for the State." Aycock v. State, 62 Ga. App. 812 (10 S.E.2d 84).

3. "Wherever a homicide is neither justifiable or malicious, it is manslaughter; and, if intentional, is voluntary manslaughter." Mixon v. State, 7 Ga. App. 805 (4) (68 S.E. 315).

4. The evidence and the defendant's statement authorized the jury to infer that the conduct of the deceased and his companion, and the attendant circumstances, were not sufficient to justify the killing, but were sufficient to excite the passion of the defendant and to reduce the killing to manslaughter. Horton v. State, 110 Ga. 739, 743 (35 S.E. 659). Under some of the other phases of the evidence the jury were authorized to conclude that the defendant entertained the fears of a reasonable man, and that a trespass, less than a felony, upon his habitation was likely. The verdict of manslaughter was supported by the evidence, and this, irrespective of passion. Monroe v. State, 5 Ga. 85, 86 (4); Keener v. State, 18 Ga. 194 (10) (63 Am. D. 269); Crawford v. State, 90 Ga. 701 (3) (17 S.E. 628).

5. Applying the above rules of law to the evidence, a verdict of voluntary manslaughter was authorized.

Judgment affirmed. Broyles, C. J., and Gardner, J.,concur.

DECIDED NOVEMBER 12, 1942. STATEMENT OF FACTS BY MacINTYRE, J. The evidence of Eddie Lane in part was as follows: "I knew Jesse Evans junior [the deceased]. I have known him about four years. I know the defendant on trial. I was with Jesse Evans junior during the night of November 3, 1941. I was with him about 6:15 p. m., in the evening. I know where the defendant, James Davis, was living at that time. Me and Jesse Evans [the deceased] went some place that night. We went over to Red's [the defendant]. We went over there to lay around and see where did he keep his whisky in the grass, and if we could we were going to barrel him for about five or ten; we were going to get it; but if we could see where he kept his whisky and he locked it in the house we were going to call the police and let them get it. If he had it in the grass we were going to steal it. That is what I mean when I say barrel it. We got over there in the neighborhood of where the defendant lived about twenty minutes until seven o'clock. When we got over there we got under the house next to Red's house. We got up under the house next to the house where this defendant lived. As to how far that house was from the defendant's house — about that far [indicating], like this was Mr. Red's house and this was the other house. I would say it was about four feet between the two houses. Jesse Evans junior and I stayed under that house about fifteen minutes. When that car drove up in Red's back yard, the defendant's back yard, it rolled up and Red walked out to the car and he looked back and seen me and so I told Jesse, `Let's go'" Q. "Well, now, where were you boys at that time?" A. "Up under the house." Q. "Next door?" A. "Yes, sir. After I spoke to Jesse Evans I came out from under the house in front of him and started around the house that way. He came out behind me, and the defendant turned around and run like this after a pistol. . . I heard James Davis say, `Halt,' before he started shooting." On cross-examination this witness stated, "We went over there for the purpose of stealing. We were just waiting for a chance to steal. He ordered us to halt and we didn't do it."

Eddie Lane testified that the deceased was going away from the defendant at the time he was shot. In seeming contradiction of such testimony, Marcellus Thornton, a State's witness and a funeral director and embalmer who handled the body of the deceased, testified: "I found a gunshot wound in his right side right below the right breast, right under the arm. That wound was right there [indicating]. That was a pistol wound." On cross-examination he testified, "The wound was right there, right under the right breast. It was right under the right breast under the arm. If the arm was being held down by the side that wound could not have been inflicted. He must have had his arm up. He could have had it up like that, too." Will Lackey, a witness for the defendant, testified that, on the Saturday night preceding the shooting on Monday, the defendant's coal house (underneath his house) had been broken into, and that he had seen the lock exhibited to him and that the lock was on the coal-house door and in a broken condition. Anderson Edwards, a witness for the defendant, testified that the deceased "run backwards and began to shoot, and he shot three or four times, and this man at the corner of the old pillar [the defendant] he shot one time, and that settled the shooting." The defendant in his statement to the jury stated: "On the night of Saturday night before the 3rd of November, some one broke in my coal house. I got chickens out there and coal, and I had a lot of tools in there where I do carpenter work, paint brushes and things. So that Sunday I laid for somebody to come back. They didn't come. So Monday I bought another lock and put on there. Monday night I heard a noise out in the back yard. When I come around the house and come in the yard I seen these two fellows and I hollered, `Halt,' and when I hollered `Halt' one flashed a light and the other one started to shooting. Well, when he started to shoot I shot back, and when I heard one say, `I am shot,' I walked up the street."

The jury manifestly believed those phases of the State's evidence that authorize a conviction of voluntary manslaughter, rather than the defendant's evidence and his statement which would have authorized an acquittal. This they were permitted to do.

The judge did not err in overruling the motion for a new trial.