Davis v. State
Davis v. State
Opinion of the Court
We will deal with the general grounds first. Able and diligent counsel for the defendant makes this statement in his brief: “Upon the trial, the evidence offered by the State was probably sufficient to support the verdict of manslaughter, but, according to the statement of the defendant and his witnesses, he made out a case of justifiable homicide.” Conceding this statement to be well founded under the whole record the jury did not see fit to accept the statement of the defendant and his witnesses that the defendant was justified in the homicide. So that leaves the case, so far as the general grounds are concerned, for us to determine whether the evidence offered by the State is sufficient to support the verdict of voluntary manslaughter. After having carefully studied all of the evidence, and the surrounding circumstances as revealed by the record, we have little hesitancy in holding that the verdict is supported by the evidence. And unless we find some merit in one or more of the special grounds, the judgment should be affirmed.
Special ground 1 assigns error on the failure of the court to charge the law of mutual combat as applied to self-defense under the principles of law embraced in the Code,' § 26-1014. This question has been presented to this court a number of times. Where one is on trial for murder and a verdict of voluntary manslaughter is returned, it is not reversible error for the court to fail to charge the principles of this section. In such an indictment a verdict of voluntary manslaughter is an acquittal of murder. The point would be good, provided mutual combat was involved under the evidence, if the verdict had been for murder. See Maddox v. State, 58 Ga. App. 450 (198 S. E. 799); Gresham v. State, 70 Ga. App. 80 (2) (27 S. E. 2d, 463); Hilliard v. State, 71 Ga. App. 528 (31 S. E. 2d, 246); Cribb v. State, 71 Ga. App.
We will consider special grounds 2, 3, and 7 together, since they are so closely related and are based upon the subject-matter of a written statement which the defendant signed after the homicide in the presence of the sheriff and one of his deputies. This written statement was introduced in evidence by the State without objection on the part of the defendant. It is not contended by counsel for the defendant that this statement was a plenary confession. It is only contended that it was an incriminating admission. The court in its charge to the jury did not refer to the written statement at all. So far as the record shows, the term “confession” was never referred to during the progress of the trial. Special ground 2 is to this effect: That the court erred in failing to charge as follows: “If the defendant in this case admitted the killing of Jim Neel, the deceased, in the manner described in the bill of indictment, but in the same connection offered a legal or justifiable excuse for the killing of Neel, then I charge you that you would not have an admission of guilt, and you should not consider it as a confession.” Special ground 3-complains because the court failed to charge the following: “If you believe any admissions were made by the defendant as to' any fact or facts illustrative of his guilt or innocence you might, consider this circumstance in connection with and in the light of any other facts, if there be any other facts established to your satisfaction, bearing upon the guilt or innocence of the accused,, and from all of the testimony determine his guilt or innocence,, but that all admissions should be scanned with care and received with great caution.” Special ground 7 complains because the court failed to charge the following: “I charge you that in order to make the defendant’s confession, if you find that he did confess,, evidence against him, it must appear to your satisfaction that such confession was made voluntarily, without being induced by
Special ground 4 assigns error because the court failed to-charge the provisions of the Code, § 26-1017, as follows: “The homicide appearing to be justifiable, the person indicted shall,, upon the trial, be fully acquitted and discharged.” The court in its general charge instructed the jury as follows: “If you believe that the defendant shot and killed the person named in the indictment, but at the time of the killing the deceased was committing or attempting to commit a felonious assault upon
Error is assigned in special ground 5 on the failure of the court to charge the law applicable to involuntary manslaughter in the commission of an unlawful act, as embraced in Code § 26-1009. This court in Randolph v. State, 75 Ga. App. 253 (43 S. E. 2d, 101), held: “Where one uses a weapon deadly per se in the usual and natural manner in which such weapon is used to kill, and death results, the law presumes an intention to kill.” Of course it is elementary that involuntary manslaughter is the killing without the intention to do so. Counsel for the defendant in support of his contention cites Lyman v. State, 89 Ga. 337 (15 S. E. 467). The weapon there used was an empty glass pitcher and only one blow was struck. Counsel also cites Kelly v. State, 145 Ga. 210 (88 S. E. 822). The weapon there used was a limb. In Dorsey v. State, 126 Ga. 633 (55 S. E.
Special ground 6 assigns error because the court submitted to the jury the question of voluntary manslaughter. It is contended in this ground that the evidence demanded a finding either for murder or justification. We have dealt with this question in the first division of this opinion, to the effect that the evidence was sufficient to support the verdict of voluntary manslaughter on the ground of irresistible passion aroused previously. This being so, this ground is without merit.
The court did not err in overruling the motion for a new trial for any of the reasons assigned.
Judgment affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.