Opinion
34908.
DECIDED NOVEMBER 24, 1953.
Assault with intent to murder. Before Judge Vaughn, Presiding. Henry Superior Court. August 10, 1953.
Thos. J. Brown, Jr., for plaintiffs in error.
Benjamin B. Garland, Solicitor-General, contra.
Where the defendants were convicted under Code § 26-1701 of an assault with intent to murder by cutting and stabbing another, and there was evidence authorizing the jury to find that the defendants were engaged in a mutual combat with the victim and others, it was error for the court to fail to charge the law of manslaughter as related to mutual combat.
DECIDED NOVEMBER 24, 1953.
At the January term, 1953, of the Superior Court of Henry County, the grand jury indicted Charles Usher and Mary Alice Usher for having, on September 28, 1952, "with a knife, the same being a weapon likely to produce death, and acting with malice aforethought," cut and stabbed and inflicted wounds upon Luther McCollum with intent to kill and murder him. The defendants waived arraignment and pleaded not guilty, and on January 27, 1953, they were tried for said offense before a judge and a jury. A verdict was rendered finding the defendants guilty as charged, and they received a sentence of from three to five years. On January 31, 1953, they moved for a new trial on the general grounds, and by amendment added thereto the following special ground: "Because the court erred in failing and refusing to give as a part of his charge to the jury the applicable law of manslaughter, as bearing on the question of mutual combat, and said charging being pertinent and applicable to the facts of said case. (a) That the evidence in the case and the statements of the defendants created a question of mutual combat between the defendants and the `deceased' [the person alleged to have been cut and stabbed, Luther McCollum, did not die, although the motions refer to him as the deceased], and such evidence demanded that the court charge without a request to charge the applicable law of voluntary manslaughter relating to mutual combat. (b) That the evidence in said case briefly shows that Luther McCollum, the party who was injured, entered into the fight between Charles Usher and several others and the statement of the defendant Charles Usher shows that Luther McCollum had a knife and that he, Charles Usher, was cut in the exchange of blows between them. These facts show a mutual combat and mutual intent to fight on the part of Luther McCollum and Charles Usher and several others and the law of voluntary manslaughter as related to mutual combat should have been charged by the court."
On the trial substantially the following evidence was adduced. Luther McCollum testified for the State: that on September 28, 1952, he got cut and stabbed at Coot Usher's in Henry County, around ten o'clock on a Saturday night; that the defendants cut him; that witness had no knife in his hands and had done nothing to the defendants; that he did not know exactly how many were present that night, but there was a big crowd, and they were not drinking; that he did not know what started the fussing, but all he knew was "they were up there fighting over me"; that "he was the first one that started it — he was fighting somebody else, I don't know who it was and I got mixed in the fight — I don't reckon he was fighting me to begin with — I wasn't doing anything. I was sitting down — I don't know which one started the fighting — he was fighting somebody else and I got mixed into the fight" (witness does not state who "he" was. Presumably he meant the defendant, Charles Usher); that "I was sitting down when they started fighting over there where I was"; and that the defendant Charles Usher cut him with a knife, and the defendant Mary Alice Usher cut him with a razor.
Pearl Albert, who was present at the house of Coot Usher the night of the melee, testified: that she was dancing with Albert Collins when Charles Usher came up and wanted to dance, and she told him she was dancing with Collins, and Charles Usher left; that the defendant Charles Usher left witness, and Fred Usher; Jr., slapped Melvin Ammons and Luther McCollum raised up and Charles hit him and started cutting him; that when this happened the fight started; and that Luther McCollum was doing nothing to the defendants when they cut him.
Melvin Ammons testified for the State: that he was at the house of Coot Usher on the night of September 28, 1952; that the defendants were there; that he did not see them cut McCollum, but that both he and McCollum got cut; that he did not see Charles Usher do any cutting, but "there was lots of them"; that "I don't know who they were, but some of them were fighting me"; that he did not know how the fight got started; that Charles Usher slapped him and witness hit him back; that there was lots of them fighting; that he hit Usher once and there were "a lots of them started hitting me"; that there were more than Charles Usher and the witness fighting; and that witness does not know why this defendant slapped him.
Robert McCollum testified: that he was at the house of Coot Usher on the night Luther McCollum got cut; that he saw the defendants, Charles Usher with the knife and Mary Alice Usher with the razor, but did not see them cut anyone; that Mary Alice Usher said "I cut him and I'll cut him again"; that Luther McCollum is the cousin of the witness; that Charles Usher and his brother were fighting "and it was crowded — they were all fighting — I don't know how many were fighting"; that witness was trying to get out of the way; that he did not get cut; and that Charles Usher was cut in the back.
Margrite Usher testified for the State: that she is the daughter of Coot Usher, and was at home the night of September 28 when the fight took place; that the defendant Charles Usher asked Pearl Albert to dance with him, and she informed him she was dancing with another; that the defendant said, "Well, then, won't none of us dance"; that the defendant Charles Usher and Fred Usher, Jr., went out on the porch and Albert Collins, the boy Pearl Albert was dancing with, was standing up in the floor and the defendant, Mary Alice Usher, walked up and jerked him and said: "What you want to push my brother for?"; that Collins told her he had not pushed her brother; that Fred Usher, Jr., said "Let me have the g-d-son-of-a-bitch," and he walked into the room and slapped Melvin Ammons and then when Luther went to raise up, Charles Usher hit him, and the witness went to look for her father, Coot Usher, "to tell him they were fighting in there."
John Henry Daniel testified for the defendant: that he was at Coot Usher's home on the night of September 28, when they had the trouble there; that he was dancing with the defendant, Mary Alice Usher, and had his back turned, and when he looked around "there was about three or four of them fighting"; that the witness did not live in Henry County, but came down there from Atlanta with the defendants; that he was teasing Charles Usher because he could not find anyone to dance with him; that the dance was called "the Buzzard Lope," and it is a style of "BeeBop" dancing; that he and Mary Alice Usher were Bee-Boping or Buzzard Loping; that Charles was having trouble locating a partner; that the others did not know how to do the "Buzzard Lope"; that "We do it a lot different in Atlanta," and Charles Usher was trying to find somebody that "did it like he did it," and "about the time the music died down, I heard some bottles falling and girls hollering"; and that he saw several persons cut.
Fred Usher testified for the defendant: that he was at the home of Coot Usher the night of September 28, 1952; that he came with the defendants, and after they had been there about 15 minutes "they started fighting"; that he was dancing the "Buzzard Lope" and "doing it the Atlanta style"; and that there was no drinking there that night.
The defendants made statements. They denied any weapons and denied using any knife and razor, and told about the general fighting there that night.
The trial judge denied the defendant's motion for new trial as amended, and to this judgment they excepted and brought their joint bill of exceptions to this court.
The contention of the defendants is that the court erred in denying their motion for new trial as amended for the reason that, under the evidence presented, it appeared that there was a general fight in progress in the home of Coot Usher on the night of September 28, 1952; that this fight grew out of a dance that was in progress in the home of Usher, and in a short time appeared to be a regular melee, in which most of the persons in the house were engaged; that this was not a one-sided affair, but a free-for-all fight in which the two defendants and the victim, Luther McCollum, and several others were actively engaged and participating; and that therefore the court should have instructed the jury on the law of manslaughter as bearing on mutual combat. The court did not give this principle of law in charge to the jury, and the single assignment of error is based on the contention that, under the evidence (it appearing from the evidence that this was a free-for-all general fight), it was the duty of the trial judge, even without a request, to instruct the jury on "the law of manslaughter as relates to mutual combat."
Code § 26-1701 states: "Any person who shall stab another, except in his own defense or other circumstances of justification, with a sword, dirk, or knife, or other instrument of the like kind, shall be punished as for a misdemeanor; provided, that . . . if such stabbing shall not produce death, and the facts and circumstances show that it was the intention of the person stabbing to commit murder, the offender shall be guilty of an assault with intent to murder." The defendants were found guilty of an assault with intent to murder. Whether they were guilty of an assault with intent to commit murder or of stabbing depends upon whether the evidence establishes that they were motivated by malice or by passion. Harrington v. State, 70 Ga. App. 55 ( 27 S.E.2d 352). See also Burris v. State, 2 Ga. App. 418 ( 58 S.E. 545).
Where there was evidence showing that the defendants and the victim and prosecuting witness, Luther McCollum, and several others, were engaged in a general free-for-all fight, in which one of the defendants, Charles Usher, and another participant, Melvin Ammons, and the prosecutor McCollum, all received cuts, it was error requiring the grant of a new trial for the court, even without a request, to fail to charge the jury on the theory of voluntary manslaughter as related to mutual combat or mutual intention to fight. See Kimball v. State, 112 Ga. 541 ( 37 S.E. 886); Buchanan v. State, 153 Ga. 866 ( 113 S.E. 87); Harris v. State, 184 Ga. 382, 390 ( 191 S.E. 439); Tate v. State, 46 Ga. 148. This being a case of assault with intent to murder by cutting and stabbing with a knife, and there being evidence showing that there was a mutual intention to fight and a mutual combat actually engaged in — there being a general free-for-all fight with knives and other sharp instruments — in which the defendants and others, including the prosecutor, engaged, and that others besides the prosecutor received cuts, the law of manslaughter as bearing upon whether the defendants could be convicted of stabbing, a lesser offense than that expressly charged in the indictment, was necessarily involved; and it was the duty of the trial judge to instruct the jury properly, with or without any written request. See Swindle v. State, 57 Ga. App. 197 ( 194 S.E. 883), and cit. The trial court erred in failing to charge the jury, as complained of in this special ground.
This case being reversed and a new trial granted to the defendants, this court does not pass upon the general grounds of the motion for new trial. Besides, there is no insistence by the defendants in their brief in this court on the general grounds, the defendants contending that the sole error complained of was the failure to charge the jury as complained of in the special ground added by amendment to their motion for a new trial.
Because of the error in failing to charge the jury as set up in the special ground, the trial court erred in denying the motion for a new trial as amended.
Judgment reversed. Townsend and Carlisle, JJ., concur.