Opinion
18956.
ARGUED MAY 9, 1955.
DECIDED JUNE 14, 1955. REHEARING DENIED JULY 14, 1955.
Murder. Before Judge Crow. Mitchell Superior Court. March 5, 1955.
Edward T. Hughes, A. J. Shirley, for plaintiff in error.
Maston O'Neal, Solicitor-General, Eugene Cook, Attorney-General, Rubye G. Jackson, contra.
1. Even if the statement of the defendant be sufficient, on his trial for murder, to authorize a charge upon the subjects of voluntary manslaughter and mutual combat, in the absence of a written request the court is not bound to present theories of the case based solely on the defendant's statement.
2. The evidence fully supports the verdict.
ARGUED MAY 9, 1955 — DECIDED JUNE 14, 1955 — REHEARING DENIED JULY 14, 1955.
On October 19, 1954, Fess Alexander was indicted by the grand jury of Mitchell County for the offense of murder, it being charged that he killed one Frank Bell by shooting him to death with a pistol. On his trial the defendant was found guilty of murder without a recommendation, and sentenced to death. His motion for a new trial, upon the general and 3 special grounds, being denied, he prosecutes this writ of error complaining of the denial of such motion.
There were 6 eyewitnesses to the homicide. Without substantial variation, their testimony as to the facts leading up to the homicide may be condensed as follows: On October 16, 1954, the defendant and Frank Bell, the deceased, met in front of the premises of one of the witnesses. Bell was a young man and the defendant an elderly man, the exact age of neither party appearing from the record. The defendant challenged the deceased for a "wrassle." The deceased threw the defendant to the ground, and one of the witnesses, a woman by the name of Myrtice Hill, testified that, when she first saw the parties, the defendant was on the ground and the deceased stooped over him, with one of his hands on the defendant's neck. She told the deceased to get off the old man, as she thought they were fighting. Both of them told her that they were not fighting but were playing. The deceased got off the defendant, and the latter got up and walked a short distance to where a woman by the name of Wade was sitting, and over her protest he got a pistol from her, and with the pistol in his pocket started walking back to where the deceased was standing. When he got near to where the deceased was standing, the defendant said, "What you want to do now?" and the deceased threw up both hands and said, "Don't shoot me, `cause I haven't did anything." While the deceased had his hands up, the defendant fired one shot from the pistol, which penetrated the left side of the deceased's chest, about 3 inches below the arm pit, from which wound the deceased died in a very few minutes. There was no evidence that the deceased was armed, nor that there had been any quarrel or argument between the parties.
The defendant made the following statement to the jury:
"Son Bell — I was going on down to Preacher Worthy's house and Son Bell seen me and met me. When he met me he asked me for a rassle. I told him, `I don't rassle — I'm too old to rassle' and he throwed me and when he throwed me he put his hand in his pocket and pulled out his knife and had it over me — stobbing at my face, and I had to turn it this way — trying to keep him from stobbing me in my face. I told him, `White folks round Pelham know I don't bother nobody.' Mr. Carl Hurst knows I don't bother nobody. Most of the time you see me, I be off by myself. I don't bother nobody. That girl ain't had no pistol. I had my pistol in my pocket. She ain't give me no pistol. When Myrtice told him to get up off me, he took his own time about getting up off me. He was sitting right along here — his knee was on the ground, and I told him to get up off me and when he did get up off me. I broke and run — and I seen Son Bell was going to catch me with that knife and I turned around and told him to get back three times. He was so near on me with the knife that I whirled around and told him to get back three times, and he didn't get back and he kept coming and I whirled around and shot him. That is how come I shot him — to keep him from killing me. All them they had there — they done framed up on that. They framed up on that. That's how come I shot Son Bell. Part of them — they say they were setting on the porch. They was setting out there in the yard and part of them was in there drinking home brew."
1. There are three grounds of the amended motion for new trial, which will be considered together. These grounds allege that the court erred in failing to charge the law applicable to manslaughter, as set forth in Code § 26-1006, the law applicable to voluntary manslaughter, as set forth in Code § 26-1007, and the law applicable to mutual combat, as set forth in Code § 26-1014. There was no request to charge any of these principles of law, the court having charged the law applicable to murder and justifiable homicide.
The defendant did not introduce any evidence. We have carefully reviewed the evidence introduced by the State, and all of it shows that, if the defendant was guilty of any offense, it was murder. There was nothing in the evidence to authorize the court to charge the law in reference to manslaughter, voluntary manslaughter, or mutual combat. The defendant insists that the testimony of Myrtice Hill was sufficient to require the court to charge these principles of law. Though this witness did testify that, at the time she first saw the parties, the deceased was on top of the defendant, with one of his hands on the defendant's neck, both the defendant and the deceased told her that they were not fighting but just playing, and there is nothing in her testimony that would even authorize a conjecture that the parties were engaged in any unlawful acts, nor that the deceased was making any semblance of an assault upon the defendant. Even if the statement of the defendant was sufficient to authorize a charge upon the subjects of voluntary manslaughter or mutual combat, there was no written request so to charge, and in the absence of such a request the court is not bound to present a theory of the case based solely upon the statement of the defendant. Felder v. State, 149 Ga. 538 (1a) ( 101 S.E. 179); Brown v. State, 201 Ga. 751 (4) ( 41 S.E.2d 156); Vun Cannon v. State, 208 Ga. 608, 612 (4) ( 68 S.E.2d 586); Hulsey v. State, 209 Ga. 61 (2) ( 70 S.E.2d 766).
2. Under the evidence introduced by the State, the jury were authorized to find the defendant guilty of murder. Under the statement of the defendant, they would have been authorized to acquit him, on the basis of self-defense. They accepted the version as made by the State's evidence, and their finding the defendant guilty is abundantly supported by the evidence in the record.
It was not error to deny the defendant's motion for a new trial.
Judgment affirmed. All the Justices concur.