Opinion
17437.
SUBMITTED APRIL 10, 1951.
DECIDED MAY 14, 1951.
Murder. Before Judge Pharr. Fulton Superior Court. January 26, 1951.
Swift Tyler, Wilbur B. Nall, and Marvin O'Neal Jr., for plaintiff in error.
Eugene Cook, Attorney-General, Paul Webb, Solicitor-General, Frank S. French, Lay Milam, Charlie O. Murphy, and J. R. Parham, Assistant Attorney-General, contra.
Where, upon the trial of one charged with murder, witnesses for the State testify that the accused had told them that he shot the deceased, but that the deceased was advancing upon him with a knife, had him hemmed in, and took hold of his jacket, the issue of voluntary manslaughter was thereby made, and the court erred in failing to charge the substance of Code § 26-1007 even though there was was no request therefor.
No. 17437. SUBMITTED APRIL 10, 1951 — DECIDED MAY 14, 1951.
Upon the trial in Fulton Superior Court of Sander Faust, on an indictment charging him with the murder of Robert Lee Vandergriff by shooting, there was evidence to show that the deceased had been living with one Lillie Vandergriff, but that they were not married; that on the occasion of the killing she had gone with the accused to the upstairs of his aunt's house in the City of Atlanta; that the deceased came there and attacked her with a knife, inflicting wounds that necessitated her going to the hospital; and that she was screaming and the accused shot and killed him. In his unsworn statement, the defendant said that the deceased started stabbing Lillie, and she was screaming; and the deceased took hold of the defendant's leather jacket and said he was going to cut and kill the defendant, and the defendant shot him. The evidence shows that death resulted from the gunshot wound. The State produced a police officer of the City of Atlanta, who testified that the defendant had made a voluntary statement to the witness, in which he admitted shooting the deceased, and said that the deceased was coming on to him with a knife, had him hemmed in, and he shot his way out. A detective of the Atlanta Police Department testified as a witness for the State that the accused made a voluntary statement to him, in which he admitted the shooting and said that the deceased was fighting a woman companion, Lillie Vandergriff, who was screaming, that he reached for the defendant and caught hold of his leather jacket, and that the defendant then shot him. The verdict was guilty of murder with a recommendation of mercy. The motion for new trial, consisting of the general grounds, and one special ground which excepted to a failure to charge without request on voluntary manslaughter, was overruled, and the exception here is to that judgment.
The special ground of the motion for new trial complains solely because of the failure to charge voluntary manslaughter as defined in Code § 26-1007. The State's attorneys contend that, if voluntary manslaughter is involved, it was injected into the case solely by the statement of the accused upon the trial and, as repeatedly held by this court, the judge was not required to charge thereon in the absence of a timely request so to do.
The fallacy of this contention lies not in the rule of law invoked, but rather in the evidence as shown by the record. Two witnesses for the State testified as to statements made by the accused, in which he admitted the shooting but added the exclamatory statements to the effect that the deceased was advancing upon him with a knife, had him hemmed in, and actually took hold of his jacket. Code § 26-1007 defines voluntary manslaughter as a killing when there is an "actual assault upon the person killing, or an attempt by the person killed to commit a serious personal injury on 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 foregoing testimony of the State's witnesses was sufficient to authorize the jury to find that the deceased had made an actual assault upon the defendant, and that he was attempting to commit a serious personal injury on the defendant; therefore the jury would have been authorized to have found an absence of malice and to have convicted the accused of voluntary manslaughter. Furthermore, the fact that the deceased, angered because the woman with whom he had been living was with the defendant, was attacking her with a knife in the presence of the defendant and manifested anger toward the defendant, would have authorized the jury to find that these facts amounted to "other equivalent circumstances to justify the excitement of passion, and to exclude all idea of deliberation or malice," as provided in the above section of the Code.
Counsel for the State largely rely upon the decision in Irwin v. State, 194 Ga. 690 ( 22 S.E.2d 499), to support their contention that this record shows that the accused was either guilty of murder or innocent. In that case, as in the instant one, witnesses for the State testified as to voluntary statements of the accused, in which he admitted the killing but added exclamatory statements. Here those statements might show danger of serious injury short of a felony, while there the threat of injury — being that of shooting — would have been a felony and, if the jury believed the threat there shown, they would have been required to acquit the accused, but here they might have found him guilty of voluntary manslaughter. This distinction between the facts renders that decision inapplicable to the present case. The evidence, independent of the statement by the defendant, being sufficient to make a case involving voluntary manslaughter, the court erred in failing to charge thereon, even though no request to so charge was made. Burke v. State, 196 Ga. 702 ( 27 S.E.2d 313).
Judgment reversed. All the Justices concur.