Opinion
14458.
APRIL 15, 1943.
Murder. Before Judge Candler. Hall superior court. December 3, 1942.
Joe K. Telford and E. C. Brannon, for plaintiff in error.
T. Grady Head, attorney-general, G. Fred Kelley, solicitor-general, and R. A. McGraw, assistant attorney-general, contra.
1. "An essential element of voluntary manslaughter is passion on the part of the slayer." Rentfrow v. State, 123 Ga. 539 (2) ( 51 S.E. 596); Frazier v. State, 194 Ga. 657 (2) ( 22 S.E.2d 404); Deal v. State, 145 Ga. 33 ( 88 S.E. 573).
2. "The unlawful killing of one who has given the slayer no provocation other than the use of words, threats, menaces, or contemptuous gestures can not be graded as voluntary manslaughter under the doctrine of mutual combat. Code, § 26-1007; Bird v. State, 128 Ga. 253 ( 57 S.E. 320)." Cone v. State, 193 Ga. 420, 428 ( 18 S.E.2d 850).
3. "Where the evidence introduced by the State made a clear case of unprovoked murder, and the evidence introduced by the defendant and his statement tended to establish that he killed the deceased in self-defense or under the fears of a reasonable man that the deceased was about to commit a felony upon his person, the judge did not err in refusing, on request of the defendant, to give in charge to the jury the law of voluntary manslaughter as related to mutual combat." Johnson v. State, 173 Ga. 734 (2) ( 161 S.E. 590).
4. Under the foregoing principles as applied to the evidence and the defendant's statement, the offense of voluntary manslaughter was not involved, and the court did not err in refusing to charge on that offense.
5. The direct and circumstantial evidence was sufficient to identify the gun and shells as the instruments used by the defendant in committing the homicide, and it was not error to admit them in evidence. Boynton v. State, 115 Ga. 587 (2) ( 41 S.E. 995).
6. While a dying declaration of the person slain may be subject to impeachment, under the facts of this case the evidence that deceased "brought" a witness some liquor on the day of the killing did not appear to be relevant for that purpose; nor was it admissible to show violent character of the deceased, as contended. Code, § 38-1803; Redd v. State, 99 Ga. 210 ( 25 S.E. 268); Chapman v. State, 155 Ga. 393 ( 117 S.E. 321); Cone v. State, 193 Ga. 420 (3) ( 18 S.E.2d 850); Bivins v. State, 147 Ga. 229 (2) ( 93 S.E. 213); Wheeler v. State, 4 Ga. App. 325 (2) ( 61 S.E. 409); Edenfield v. State, 14 Ga. App. 401 ( 81 S.E. 253); Gilbert v. State, 27 Ga. App. 604 ( 109 S.E. 697).
7. The evidence authorized the verdict; and no error of law having been committed, it was not error to refuse a new trial.
Judgment affirmed. All the Justices concur.
No. 14458. APRIL 15, 1943.
Dock H. Green was convicted of murder in the killing of Jack Looney, and was recommended to mercy. His motion for a new trial was overruled, and he excepted.
The evidence for the State showed that the defendant resided in the home of Mr. and Mrs. Looney, being employed as a farm laborer; that on a Sunday in February, 1942, Looney after finishing dinner left the defendant and others at the table, and went out into the yard for some purpose; and that when he returned and went into the house, persons about the place, including Mrs. Looney, heard the report of a shotgun. Mrs. Looney testified, in part, as follows: "I was in the chicken house [feeding the chickens]. Jack just walked back towards the house. He didn't have anything in his hands that I could tell. It couldn't have been more than two or three minutes after he passed the window [of the chicken house] until I heard the shot fire. I did not see the shot fired, I heard it. I did not hear any one make an outcry. When I heard the shot I set down my feed and went to the door and went back and broke and run into the house. I don't expect it took a minute from the time the shot fired until I reached the house. I found my husband on the back porch. He was sinking down on the porch. I was the first person to him after he was shot, and I arrived there in less than a minute after the shot was fired. When I reached him he said, `Dock shot me.' . . He said he was bleeding to death and he was going to die. He told me to sell all he had, it was enough to take care of me all my life if I would take care of it and let nobody take it. When I got him on the porch, he said, `May, Dock shot me; what he done it for I don't know, for I was the best friend Dock had, and I thought he was my best friend,' and says, `Where you find my pipe at the door was where he shot me, and I am dying.' I found the pipe laying just inside the living-room door. When he was shot he was in the front room of the house. When I got there he was on the porch sinking down on the floor. He was shot in the bowels. I got him into the house. He just kept saying the same thing all over — every one come in he would tell the same thing he told me. I heard it every time he told it."
Other witnesses testified to the same general effect. It appeared from some of the evidence that the defendant and the deceased, with other men, had walked about the farm in the forenoon, going "over into the woods about an old sawmill place," and that they "got some liquor." There were no eye-witnesses to the immediate act of the homicide.
The defendant's statement on the trial was as follows:
"Well, gentlemen, you are already aware of the fact that I was staying with Jack Looney, and on the 21st of February, in the afternoon, I told Jack that I was going to quit the following week, about the first of the week, and try to get in the army, because they had been refusing me on account of my teeth — at that time the requirements were very rigid about teeth, but since then they lowered it. I went to Flowery Branch that afternoon late, and I came back to Walter Cantrell's house, and he lived alone as a bachelor I believe, and I stayed awhile with him and told him I believed I would go back to Looney's, and he says `Don't go; just stay until morning, I am going back to get some more whisky.' We woke early the morning of the 22d, and went down to Mr. Looney's house I imagine about seven-thirty, and Mr. Looney invited Walt in to have breakfast, and if I am not mistaken he drank a cup of coffee, I don't believe he eat any, and Mr. Looney went out to the chicken house and asked me if I would water and feed the mules, and I told him all right, I would feed and water the mules, and I was behind the barn, and when I got back Bannister and Looney was out at the chicken house, and Jack walked out, and we was out there about an hour, that would have made it about eight forty-five, and Walter Cantrell told him, Jack Looney, he wanted some whisky, and he said `I haven't any at the house, we will have to go to my thicket and get it,' and says, `Jim, you want to go with us.' So we went over to the old sawmill stand on Jack Looney's place, and he says `You fellows wait a few minutes,' and we was there about five minutes, and he came back and let Walter have what he wanted, and he says `You can have more if you fellows want it,' and we went back to his house and come to the spring, and we stayed and talked awhile, and Jack got up and said he was going to the house, and went on, and Walter and Jim and myself talked for a few minutes and went on behind him, and I stopped at the barn — I had to go through the old barn to get to the house, and Walter and Jim went on back to the house. I imagine I was at the barn about fifteen minutes, and I went on out towards the chicken house, and the door to the chicken house faces southeast — you can't see that door coming from the barn, and before I got there I heard Jack and Jim cussing and when I got there Jack had Jim by the throat pushing his head against the chicken house. I says, `Wait a minute you fellows, don't do that, you are brothers-in-law, and live down there together and have knowed one another a long while,' and they quit, and Jack and Walter went in the chicken house, and Jim and myself went out to the woodpile, and it was thirty feet to the chicken house, and I was ribbing Jim about having to go to the army, and I told him I was going to try again real soon; and he says, `You had better watch Jack,' says `He told me he was going to kill you this morning,' and I told him `maybe not.' He was drinking, and he said he was going to the house and shave. Where he went I don't know, and Jack went in the house ahead of Walter and myself — he did not say anything to me, in fact he never spoke to me any more after I saw him at the chicken house — and he was eating, and Walt and myself sat down, and Jack usually is a very large eater, and he got up from the table and never said a word to any one and walked out.
"And Walt and myself finished eating and went into the livingroom and set down, and Walt asked me if I would roll him a cigarette, and I did. He was drinking pretty heavy, in fact he was drunk. And I rolled him a cigarette and lit it for him, and he got up and walked out, and I got to thinking, `Jack is already mad, and Walter is drinking,' and Jim he was drinking, and the Sunday before I had been down to Charlie DeLong's — I had been so sick on Christmas — and pay him some money I owed him, and I thought I would go and not come in contact with Jack because I knew when he was drinking and mad he was a violent man and he would kill you because he had the most violent temper I ever saw a man and the best fellow when he wasn't mad; and I started out the back door, and Jack stepped up to the well in the back yard with an empty pail like he was coming for water, and turned to someone that was behind him and says, `Where in the hell is Dock?' says, `I am going to tear his damn throat out,' and what Jim told me and what he said then scared me, and I know what Jim told me must be true, and I stepped back in the house to keep from coming in contact with that man. I don't know why he was mad at me because once before he got mad at me and I did not know what was the reason, and got after me with an ax, and I left from down there, and he sent me word several times he wanted to make an apology, he was wrong; and I did not go back until I met him at Flowery Branch and he asked me to forgive him and he said, `I was wrong,' and I told him it was all right and to shake hands and be friends.
"After I went back in the room I thought Jack took usually forty or forty-five minutes to water and feed the chickens, and I thought, `He will go back to the chicken house, and I will leave.' And I was up there a few days before then, and Mr. Cliff Parsons says, `Jack you take awful unnecessary chances going in the woods all times of the day and night with all that cash money; you carry money all of the time, and somebody is going to harm you.' So after Mr. Parsons left Jack Looney told me he says, `You know I have been thinking of what C. R. told me.' He says, `I do take chances, and some fellows will think I have got money and kill me, and I am going to take my pistol all of the time,' and I saw him with the pistol, and he told me he had another, and I did not know who he got it from. I started towards the door when I heard someone tip-toeing between the living-room where I was at and the kitchen, and I looked, and it was Jack Looney coming across the floor on his tip-toes, and I knew he was coming for me because of what he said out at the well. I don't know who he was asking where I was at, and I was scared and excited, and I started towards the door that leads into another room to get out the front door, and that door was closed, and there was no door knob on that door, and it is very hard to get open sometimes — he always kept the front door locked, and I turned around towards the front towards where there was a window with the intention of getting out the window and getting away some way; and when I went around the corner of the bed — it was sitting angling across the room — when I went around the foot of the bed I saw three guns on the wall, and I think probably I can bluff him, and I snatched one and turned from the wall, and I fell on the bed, and I called on him to stop, and I called plenty loud for him to hear it, and instead of stopping he continued on around and made a motion towards his pocket with his hand, and I was trying to get the gun over the foot of the bed, and it fired, and I am confident if it had not been for the bed I would have shot him in the leg. So he went out backwards out of the room, and I was scared to go in to see how bad he was hurt, because I was afraid he would shoot me. And Jim's boy come in there where I was at, and I told him to go to Flowery Branch and get a doctor, and he was excited as well as me, and asked what doctor, and I says, `Get Dr. Homer or get some doctor or Mrs. Harris,' — and I thought I would go to Flowery Branch and report to the nearest officer, and Mrs. Looney was somewhere, I thought she was in the kitchen, but she told us in her testimony she was in the chicken house. When I was leaving the house to go to Flowery Branch Jim Bannister was standing about half way between his house and Jack Looney's house, hollering to his wife to come up here, he says, `I knew it was going to happen,' and then says, `Jack Looney was out here and said he was going in the house to kill him,' and I believed at the time — thought at the time he was the one shot, and Mrs. Bannister was standing on her back porch, and I never had any conversation I don't think with that woman whatever. I guess she was excited is the reason she made the statement she did. I don't know why Jack Looney was mad at me, unless some one had told him something or he was drinking and mad at me because I saw them out there fighting. I wouldn't harm that man, because I liked him, I would not have stayed with him if I had not liked him; and why should I shoot that man deliberately only to protect myself and me liking him and putting my soul in jeopardy? I come on and came to Mr. Bennett at Flowery Branch and told him I had to shoot Jack, and he brought me on to Gainesville; and Mr. Jones said I told him down at the filling-station that I shot the best friend I had, but I don't remember making any statement like that, and Walt Cantrell when I left the house was standing at the corner of the chicken house I imagine that the chicken house was 25 feet from the house. May I take a drink of water?" The court: "Yes sir."
"Mrs. Looney said in her statement that was her revolver, but I knew Jack owned two revolvers. I had saw him with them, and I saw him also on several occasions carry a iron pipe about ten inches long and about three-quarters of an inch thick, and I know he was a violent man, and he meant what he said he would do and he wasn't scared of no man I don't believe."
The defendant requested a charge on voluntary manslaughter as related to mutual combat, and the refusal of such request was assigned as error in his motion for a new trial. Another complaint was that the court admitted in evidence a double-barrel shotgun and two shells, one empty and the other snapped, over objection that they had not been sufficiently identified. The third and final complaint was that the court erred in excluding the following testimony of one of the State's witnesses on cross-examination: "The deceased was the person who brought me some liquor on the day of the killing."