Opinion
15602.
OCTOBER 9, 1946.
Murder. Before Judge Renfroe. Screven Superior Court. June 29, 1946.
D. A. Bragg and C. L. Hilton, for plaintiff in error.
Eugene Cook, Attorney-General, Fred T. Lanier, Solicitor-General, Milton Carlton, W. C. Hawkins, and Roscoe Thompson, Assistant Attorney-General, contra.
1. The evidence fully authorized the verdict, and therefore the general grounds are without merit.
2. The special assignment of error fails to set forth any evidence upon which to base the contention that the charge with reference to mutual combat was demanded; and, irrespective of any rule of appellate practice which might require that every assignment of error must be complete in itself without reference to the brief of evidence, we have nevertheless carefully examined all of the evidence, including the testimony of the defendant's son, who was the only witness for the defense, and find no facts or circumstances testified to, except possibly certain circumstances in the defendant's own statement, which might tend to indicate that both of the parties had manifested a mutual intention to fight, but instead have found consistent, and corroborated, evidence to the contrary.
3. "In the absence of a proper and pertinent written request for instructions thereon, the court is not bound to give in charge the law of a theory of the case arising solely from the statement of the accused." Hardin v. State, 107 Ga. 718 ( 33 S.E. 700); Smith v. State, 117 Ga. 259 ( 43 S.E. 703); Jackson v. State, 192 Ga. 373, 374 ( 15 S.E.2d 484).
Judgment affirmed. All the Justices concur.
No. 15602. OCTOBER 9, 1946.
STATEMENT OF FACTS BY JENKINS, PRESIDING JUSTICE.
The defendant was convicted of murder, and sentenced to life imprisonment in the penitentiary. Exception is taken to the order overruling his amended motion for new trial. Error is assigned on the general grounds, and one special ground (the other being specifically abandoned), which complains of the failure of the court to charge, without a request, the law of voluntary manslaughter as related to mutual combat. The State's evidence indicated that the deceased and the defendant had been on friendly terms prior to and during the course of a week-end visit by the deceased in the defendant's home; that about 7 p. m. on Sunday afternoon the deceased and the defendant got into an argument about a transaction involving the sale of some syrup which had taken place some time in the past, but that no blows were passed, and they shook hands, but the deceased then said: "I will speak and pass with you, but I will never set foot in your house again." The deceased then took his suitcase and went out to a car where his brother-in-law was waiting with three small children to take the deceased home. The deceased got into the back seat of the car with two of the children. The defendant's wife then came to the porch and urged them to leave quickly because the defendant was coming with a gun, and was going to kill the deceased. It was made to appear that the deceased was at no time armed. Before the brother-in-law could start the car the defendant appeared with a shotgun. The deceased immediately get out of the back seat, where the two small children sat, but before he could get completely away from the car the defendant shot him, causing blood to splatter over the deceased's sister, who sat in the front seat of the car holding a small baby in her arms. The defendant reloaded his gun and said: "If the son-of-a-bitch is not dead, I will go around there and finish him." The defendant relied upon his own statement, and the evidence of one witness, his son, who testified only as to seeing a dark object taken from off the body of deceased by the deceased's brother-in-law, but that he did not know what it was.