Opinion
15523.
SEPTEMBER 7, 1946.
Murder. Before Judge Boykin. Troup Superior Court. April 12, 1946.
Duke Davis and R. W. Martin, for plaintiff in error.
Eugene Cook, Attorney-General, L. M. Wyatt, Solicitor-General, and Rubye G. Jackson, contra.
1. The jury is not restricted to evidence offered by one side or the other, but may determine that parts of the evidence offered by each must be accepted in arriving at the truth. Where a composite of the evidence in the trial of one charged with murder shows a mutual intention to fight, the court should charge the jury on the law of voluntary manslaughter as related to mutual combat.
2. Failure to charge the jury on the Code, § 26-1014, was not hurtful to the defendant.
3. Where no evidence is offered to impeach a witness by establishing bad character, and no evidence is offered to sustain such witness by proof of general good character, the court should not charge that a witness may be impeached by proof of general bad character any may be sustained by proof of general good character.
4. Objections to the admission of testimony can not be made for the first time in this court.
5. Under the rulings made on the special grounds of the motions for new trial, no further ruling is necessary on the general grounds.
No. 15523. SEPTEMBER 7, 1946.
Charlie Cotton was indicted in Troup County for the murder of Nettie Rows. The trial resulted in a verdict of guilty, without a recommendation of mercy. The defendant made a motion for new trial, which was later amended, and the exception is to the overruling of his motion for new-trial, as amended.
On the trial it appeared that the homicide occurred at the home of Luella Truitt, where a number of negroes were attending a supper. Two persons were killed, Nettie Rows and her brother, known as Sut Swift.
Grady Winn testified for the State: That an argument was started in the house, the defendant being among those arguing, and Sut Swift insisted that the witness go with him to try to get them quiet. They went in the room, and Sut Swift said, "Please boys, if I was you I would go out of here because this lady acts like she don't want you all here." When the said that, he went to the door and the defendant shot. When the defendant shot Nettie Rowe, she was standing in the hall, and the defendant was standing in the door or on the ground. He had a shotgun inside of his overall pants, and the witness had seen it when he first walked into the house. The deceased, Nettie Rowe, was not doing anything at the time she was shot, and did not have any weapon.
Grady Henry Harris testified for the State, that the defendant was at the home of Luella Truitt, on the night of the homicide, with a shotgun in his overalls, and that there were several arguments. The witness made vague and contradictory statements about these arguments. At one time the stated that the defendant started an arguments; at another time he said that all of them were arguing but the defendant; and at another point he said that he did not know whether the defendant was in the argument or not. The witness stated: That, after the first time they had an argument, the defendant left in his car and was gone about thirty minutes; that, when the defendant left in the car, the witness did not see the gun, but when the defendant came back he had the gun in his overalls; and that, immediately preceding the homicide, Luella Truitt was trying to get the defendant and others out of the house, and the defendant stepped out of the door and cursed and told them, "I will kill these men," and shot Nettie Rowe first and then shot Sut Swift.
The defendant made a statement in which he asserted: That, when he got to the house of Luella Truitt, a crowd of people were there. He went to the kitchen and bought a fish sandwich, and then walked back in the other room and ate it. When he walked back in the kitchen, they had a half gallon of liquor, and a man (apparently meaning Sut Swift) accused him of stealing his liquor. The defendant denied it, and the man said that he was a liar and threatened to kill him. The woman (apparently meaning Nettie Rowe) had a butcher knife and the man had a 22 rifle, and they started running toward him. He started out of the house, and just as he got to the ground the man shot at him twice with the rifle. Somebody ran out of the house and gave him a shotgun and told him to shoot, that they would kill him, and he shot twice.
Robert Cotton, brother of the defendant, testified for him: That the witness did not hear any argument about anyone stealing any whisky. Just before the shooting, he saw Sut Swift with a rifle and Nettie Rowe with a butcher knife. The defendant was not doing anything. Sut Swift said to the defendant, "Don't you believe I will kill you?" The defendant replied, "Yes, I believe you will kill me." Nettie Rowe then walked up with the butcher knife and said, "Don't you believe I will cut your . . damn neck off?" The defendant said, "Yes, I didn't come up here for nothing like that. I come up here to have a good time, I don't want to shoot you or hurt you." Nettie Rowe then said, "Sut says, if you don't like it, hit the ground." The defendant said that he was going on out of the house, and about that time two shots were fired, and when they were fired, the defendant was standing on the ground. The defendant did not have anything in his hands when he went out the door. Sut Swift shot twice, and Nettie Rowe was right at the side of the steps, and she had a butcher knife in her hand. The witness was outside of the house at the well, and did not see the defendant shoot.
J. C. Fox testified: That the defendant did not have a gun. Sut Swift had a rifle, and Nettie Rowe had a butcher knife. Sut Swift shot at the defendant, and Nettie Rowe told the defendant, "If you don't make haste and get out, you won't get out." As Charlie was backing out the door, "Net and Sut were coming on up on him." Sut Swift shot about the time the defendant stepped out the doorway. The witness said that he then heard a shotgun fire, but did not see the defendant at that time because the witness had gotten behind the door.
H. L. Golston testified: That Sut Swift had a rifle and Nettie Rowe a butcher knife; that Sut Swift backed the defendant out of the hall, and Sut and Nettie were going out in the same direction the defendant was backing out; and that the rifle shot twice before the shotgun fired.
Tommie Lee Golston testified in part as follows: "I heard them cursing in there, Luke and Nettie. Sut told Charlie [the defendant] to get out of the house. When I heard that, I was standing in the door. Then I come on out. When I got back to the door that leads out in the hall, Sut had the rifle in his hand and Nettie had a butcher knife. They were going towards Charlie, and Sut had the gun and Nettie had the knife. . . Charlie was backing back towards the front door. I went out the south door. . . Little before I got to the highway I heard the rifle shoot twice. After then I heard the shotgun shoot twice."
The State offered in rebuttal the testimony of Luella Truitt, that Sut Swift did not have a rifle that night, and that Nettie Rowe did not have a butcher knife; other testimony that no rifle shots were fired, that the two deceased persons did not have weapons; and testimony by persons investigating the homicide that no weapons were found at the scene of the homicide.
The State offered evidence tending to impeach the defendant's witness, Robert Cotton (defendant's brother), by proof of contradictory statements, and by disproving the testimony of this witness. No evidence was offered to impeach the witness by proof of general bad character, nor was there any evidence offered to sustain him by proof of general good character.
1. The court charged the law of murder, the general law relating to voluntary manslaughter, and on justifiable homicide, but error is assigned in the first amended ground of the motion for new trial because, it is contended, the court should have charged the law of voluntary manslaughter as related to mutual combat, or the mutual intent to fight.
The evidence for the State, if credible, establishes that the killing of Nettie Rowe was done by the defendant without justification, alleviation, or mitigation, and that the defendant is guilty of murder. The evidence for the defendant, if credible, tends to establish that the killing of the deceased by the accused was justifiable under the fears of a reasonable man. The jury, however, were not restricted to evidence offered by one side or the other, but could have determined that parts of the evidence offered by each must be accepted as presenting true facts.
A composite of the evidence shows facts and circumstances essential to mutual combat, or the mutual intent to fight with deadly weapons. Under evidence for the State, the jury would have been authorized to find that the defendant and the deceased engaged in a quarrel; that the defendant left the scene of the homicide and returned with a shotgun in the leg of his overalls, or that the defendant had a shotgun in the leg of his overalls. The defendant's evidence (other than his statement, which would have authorized the jury to find that the defendant shot in self-defense and was therefore justified) tends to show: That both of the deceased, Sut Swift and Nettie Rowe (who were brother and sister), were armed, Swift with a 22 rifle, and Nettie Rowe with a butcher knife; that the deceased, Nettie Rowe, had said to the defendant, "Don't you believe I will cut your. . damn neck off?" (Testimony of Robert Cotton); that the deceased, Sut Swift and Nettie Rowe (armed as stated) were advancing on the defendant; that Swift shot at the defendant with the 22 rifle, and Nettie Rowe said to the defendant, "If you don't make haste and get out you won't get out" (Evidence of J. C. Fox); and that Swift shot at about the time the defendant reached the outside door, and the defendant returned the fire with a shotgun.
"If an unjustifiable homicide resulted from the acceptance by him [defendant] of a challenge to enter into a mutual combat with deadly weapons, the killing was no more than voluntary manslaughter." Jenkins v. State, 123 Ga. 526 ( 51 S.E. 598). Mutual blows are not always necessary to make mutual combat. Tate v. State, 46 Ga. 157; Gresham v. Equitable Accident Ins. Co., 87 Ga. 497 ( 13 S.E. 752, 13 L.R.A. 838, 27 Am. St. R. 263); Findley v. State, 125 Ga. 583 ( 54 S.E. 106); Buchanan v. State, 153 Ga. 870 ( 113 S.E. 87); Ison v. State, 154 Ga. 417 ( 114 S.E. 351); Mathis v. State, 196 Ga. 288 ( 26 S.E.2d 606). "The essential ingredient, mutual intent, in order to constitute mutual combat, must be a willingness, a readiness, and an intention upon the part of both parties to fight. . . An aggressor will not be allowed, under the law, to mitigate his crime on the theory of mutual combat when it appears that his victim had no desire to fight, and intended to fight only to the extent that a defense of his person against unprovoked attack was necessary." Mathis v. State, supra. In the Mathis case this court held that there was no evidence to authorize a charge on the law of mutual combat. The evidence in that case, however, showed that the deceased was unarmed, and that the defendant was the aggressor. In the present case, under the theory presented by the defendant's witnesses, the deceased, Nettie Rowe and Sut Swift, were the aggressors, the defendant declined to engage in mortal combat until he had been fired upon twice by Swift, and then, and then only, did he return the fire, which resulted in death to the two persons advancing upon him.
In order to reduce a homicide to voluntary manslaughter there must be "some actual assault upon the person killing, . . or other equivalent circumstances to justify the excitement of passion, and to exclude all idea of deliberation or malice, either express or implied. . . The killing must be the result of that sudden, violent impulse of passion supposed to be irresistible." Code, § 26-1007. The essential element of "assault" may be found in evidence of a mutual intention to fight. Ray v. State, 15 Ga. 223; Findley v. State, supra; Perry v. State, 185 Ga. 411 ( 195 S.E. 175). The Ray case, which has been cited by this court many times, states the rule as follows: "Evidence of such assault, may be found in a mutual intention to fight, and in the fact of an approach, by the decedent, to the prisoner, in furtherance of this design, when it was not necessary for him to do so, in self defense." One of the leading cases in this State on mutual combat is that of Gann v. State, 30 Ga. 67. In the Gann case it is stated: "If, upon a sudden quarrel, the parties fight upon the sport, or presently agree and fetch their weapons and fight, and one of them is killed, such killing is but voluntary manslaughter, no matter who strikes the first blow." It is unnecessary here to determine whether or not the evidence would support an inference of an agreement to "fetch" weapons and fight. There is evidence from both sides of a quarrel, and under the defendant's testimony there is evidence of a fight.
The statements of Nettie Rowe previously quoted, standing alone, would not authorize a verdict of voluntary manslaughter, since under the Code, § 26-1007, provocation by words or threats are insufficient to constitute an assault. But if she was acting in concert with her brother, who was shooting at the defendant while she was advancing on the defendant with a butcher knife, when it was not necessary for her to do so in self-defense, it appears that she was actually making an assault, and intended to fight with the defendant. "A mutual intention to fight need not be proved directly, but may be inferred by the jury from the conduct of the parties." Sapp v. State, 2 Ga. App. 449 ( 58 S.E. 667).
This case comes within the rule stated in Johnson v. State, 173 Ga. 742 ( 161 S.E. 590), where it was held: "Being suddenly aroused by anger, and mutually intending to fight, the law of mutual combat is involved. Such combat sufficiently appears where it is shown that there was a mutual intent by the accused and deceased to fight, and one or more shots are fired. It makes no difference who fires the first shot, nor is it necessary that both parties shoot."
Where, as in this case, there was testimony as to facts and circumstances tending to show mutual combat, or the mutual intention to fight, the court should give in charge to the jury the law of voluntary manslaughter as related to mutual combat. A failure so to charge will require the grant of a new trial. Gann v. State, supra, Waller v. State, 100 Ga. 320 ( 28 S.E. 77); Hart v. State, 135 Ga. 357 ( 69 S.E. 530); Brannon v. State, 188 Ga. 18 ( 2 S.E.2d 654).
2. In special ground 2, error is assigned on the failure of the court to charge the law of justifiable homicide under the Code, § 26-1014. Where mutual combat, or the mutual intention to fight, is involved, as shown by the evidence, the court may properly charge on this section of the Code, but the court having charged the Code, §§ 26-1011, 26-1012, on justifiable homicide under the fears of a reasonable man, the defendant can not complain that he did not charge the more stringent rule in § 26-1014. Clearly such failure to charge was not hurtful to the defendant. Crawford v. State, 149 Ga. 485 ( 100 S.E. 633); Buchanan v. State, 153 Ga. 866 ( 113 S.E. 87).
3. Special ground 3 assigns error on the following charge of the court: "A witness may be impeached by disproving the facts testified to by him, or by proof of contradictory statements previously made by him relevant to his testimony and to the case, or by proof of general had character. When thus impeached, or sought to be impeached, in either to the latter instances, he may be sustained by proof of general good character, the effect of the evidence to be determined by the jury." It is contended that, since no witness was sought to be impeached by proof of bad character, nor sought to be sustained by proof of good character, such charge is error for reasons assigned.
"In charging the jury how witnesses may be impeached, it is error to specify, as one of the modes, evidence of general bad character, where there is no such evidence in the case." City Bank of Macon v. Kent, 57 Ga. 284 (9). See also Brand v. Bagwell, 133 Ga. 750 (6) ( 66 S.E. 935). In Southern Ry. Co. v. O'Bryan, 119 Ga. 151 ( 45 S.E. 1000), it was held: "It is improper for the judge to charge on the subject of impeachment by proof of general bad character, unless some attempt has been made to thus impeach a witness. Such an error, however, would not generally be a sufficient reason for the reversal of a judgment."
In Geer v. State, 184 Ga. 805 (2) ( 193 S.E. 776), it was held: "Where it was sought to impeach the only eyewitness (but not the only witness) for the State by proof of contradictory statements, and where such witness's own testimony tended to show she was a person of bad character, and where the State introduced no evidence of the general good character of the witness, and instruction by the court to the effect that where a witness, has been impeached such witness may be reinstated by proof of general good character, while improperly given in charge, was harmless error under the facts." (See also cases cited.) In Hart v. State, 93 Ga. 160 ( 20 S.E. 39), it was held: "Where the sole witness for the State is impeached, not only by evidence of bad character and by contradictory statements with reference to the substance of his testimony, but by testimony tending to disprove the main fact on which guilt depends, the court should not charge then jury upon sustaining the witness by proof of good character, unless there is some evidence on which to base such a charge. In this particular 'case the error is cause for a new trial, as the jury may have understood that the court had reference to certain evidence tending to show that the witness was industrious and reliable as a work-hand, and meant to treat this as evidence on which to base the charge." In Jones v. State, 193 Ga. 449 ( 18 S.E.2d 844), it was held that, where the State sought to impeach the sole witness for the defendant (who was an eyewitness to the homicide) by proof of contradictory statements and by disproving facts to which he had testified, it was reversible error to charge that such witness might be sustained by proof of general good character, when no evidence of the good character of such witness was offered by the defendant.
In the present case, where there was no evidence of bad character and no evidence to sustain the witness by proof of good character, the court's charge was not applicable to the evidence. The defendant's theory as to the homicide did not test alone, however, upon the testimony of the witness sought to be impeached. There was testimony by other witnesses as to the contentions essential to his theory of the homicide. This being true, such inaccurate charged would not require the grant of a new trial.
4. Special ground 4 complains of the admission of certain testimony over the objection that it was not a part of the res gestae. The court stated: "I think that is the rule. I admit it for the sole purpose to show the state of his mind, if it does. That is all it will be considered for." There was no objection by counsel at the time that the evidence was not admissible for such purpose. It is now contended that the evidence was objectionable because it did not show the state of the defendant's mind toward the deceased. Such objection to the admission of evidence can not be made for the first time in this court.
Judgment reversed. All the Justices concur, except Duckworth, Atkinson, and Wyatt, JJ., who dissent.
This was plainly either a case of murder of killing in self-defense. There was no semblance of mutual desire and intention to fight, and whether or not the evidence authorized the charge on impeachment, it does not seem that any possible harm could have resulted therefrom to the defendant, and if not, a reversal on this ground was not authorized.