Opinion
41627.
SUBMITTED NOVEMBER 2, 1965.
DECIDED FEBRUARY 3, 1966. REHEARING DENIED MARCH 4, 1966.
Voluntary manslaughter. Fulton Superior Court. Before Judge Alverson.
James A. Able, Jr., for appellant.
Lewis R. Slaton, Solicitor General, Paul Ginsberg, J. Walter LeCraw, for appellee.
1. While a bedroom in a rooming or boarding house which the operator reserves for her own use is her habitation and is a place in which she is entitled to privacy to the exclusion of others who may rent rooms and live in the house, where defense of habitation, if raised, is done solely by the defendant's unsworn statement, it is not error to fail to charge on that matter, absent an appropriate request therefor.
2. A complaint that the court failed to give some additional charge in connection with a charge given, which in and of itself was correct, shows no cause for granting a new trial.
3. It is not error to refuse a written request upon an issue not raised by the evidence or the defendant's statement.
4. Where the defendant makes an unsworn statement it is not error for the court to state in the charge giving the law applicable to unsworn statements that it was not subject to cross examination. Addition of the phrase "in this case" cannot be construed as a proscribed comment calling attention of the jury to the law that authorized the defendant to be sworn as a witness and cross examined.
SUBMITTED NOVEMBER 2, 1965 — DECIDED FEBRUARY 3, 1966 — REHEARING DENIED MARCH 4, 1966.
Nema Ruth Huff, indicted for the murder of Lee Franklin Bridges by shooting him with a pistol, was convicted of voluntary manslaughter. The evidence disclosed that defendant was operating a boarding house and that the deceased was one of her boarders. There was some evidence indicating that he may have had some interest with her in the operation of the house, though she denied that any business arrangement existed between them other than that he was a regular boarder. The house was a two-story one. Rooms on the second floor were generally rented. On the first floor was a living room, containing the usual furniture and a television, to which all people in the house had access. There was a dining room and kitchen, used in supplying meals for some of the boarders. There were two bedrooms with a connecting bath between. Defendant and her four-year old invalid child occupied the front bedroom, to which there was a door opening from the living room, and the deceased occupied the other.
Defendant and the deceased had been seen together a number of times at the Blue Lantern and other places where they ate, drank beer, etc. So far as was known their relationship had been cordial until the deceased became delinquent in the payment of his weekly rental, and when he was some three weeks delinquent shortly before Christmas defendant asked him to pay up or get out. The deceased was somewhat disagreeable about that, and on New Year's eve quarreled with and attacked defendant, leaving her with black and blue places over her body. On January 3 defendant went to the movies with another man, and when she came in near midnight she found the deceased asleep on the sofa in the living room with the television going. She turned the television off and he awaked, asking why the lights had been turned off. Defendant replied that she had turned off the television — not the lights. The deceased appeared to be intoxicated. He was argumentative in his attitude, saying to the defendant, "Oh, you don't want me to watch television any more?" Defendant suggested that he go on to bed and that they would straighten the matter out the next day and went toward her bedroom, whereupon the deceased picked up his shoes from the floor and called to defendant, "Hey, wait a minute. I want to talk with you." In her unsworn statement defendant asserted: "I thought he was going to throw his shoe at me, and I started walking toward my room. He followed me on to my room, to the door, and I tried to lock the door. He pushed his way on in. He did not speak after he entered my room. He turned, and walked by the side of the foot of my bed, like he was going toward the chest of drawers. I turned and opened a dresser drawer, took out a gun that I had and put it in my pocket because I figured if I could get him out of that room without any trouble, that would be the best way. So I said to him: `Lee, please go on and leave me alone. Don't start no more trouble.' He turned around and I believe that with a backward kick very hard, closed the door before I could even, I would say, breathe, and he hit me in the face very hard. My hand still being in my pocket, with my hand on the gun, I shot him in the leg. He hit me twice or possibly three times more. The next lick he hit me I went on top of the dresser. I tried to raise the gun where that I would not shoot him in the stomach and I finally, after I was almost knocked up, I finally raised the gun up. I tried to put it high enough where it would shoot him to knock him down, and not to kill him. He just turned me loose, or come loose from the way he was standing. He turned completely around. He went down on his hands and elbows onto my bed. He slid off of the bed this way and he went backward and leant his head this way." After that she went into the hall and called Mr. Busbee, a boarder from upstairs, told him she had shot Lee and asked that he call the police.
Dr. Saffan, who saw the defendant the following day, January 4, testified that she was complaining of her nose hurting, pain about her left breast and left hip. He examined her, including the making of x-rays, and found that the bridge of her nose was broken. He saw no bruises on the breast or hip. He could not say what caused the nose to be broken, but it was his opinion that it could have resulted from a judo or karate chop directly to the nose. He could not say with certainty when the nose had been fractured, though in all probability it was recently done. She told him she had been beaten up by a man, both on December 31 and the night before (January 3) and that she had shot the man. The x-ray showed no healing about the break, and it was his opinion that the nose was broken within a week before he saw her. It could have happened on either occasion — December 31 or January 3.
To the overruling of her amended motion for new trial defendant appeals, filing an enumeration of errors setting out four errors which correspond to the four special grounds in her amendment to the motion for new trial.
1. It is contended that the court erred in failing to charge on the defendant's right of defense of her habitation, in the language of Code § 26-1013: "If, after persuasion, remonstrance or other gentle measures used, a forcible attack and invasion on the property or habitation of another cannot be prevented, it shall be justifiable homicide to kill the person so forcibly attacking and invading the property or habitation of another; but it must appear that such killing was absolutely necessary to prevent such attack and invasion, and that a serious injury was intended, or might accrue to the person, property, or family of the person killing."
The State urges that the defendant's habitation consisted of the whole house — not just her bedroom, and that since the deceased was a guest in the house and already in it when the trouble arose this principle can not be applicable, relying upon Pyle v. State, 187 Ga. 156 (2) ( 200 S.E. 667) and White v. State, 2 Ga. App. 412 (1b) ( 58 S.E. 686). We do not agree. As the facts indicate, the defendant was operating a boarding house. Some of the rooms were rented out to the boarders, including one to the deceased. But she reserved to herself and for the use of herself and child the front bedroom. The rooms rented to others became the habitation of those to whom they were rented. Newcomb Hotel Co. v. Corbett, 27 Ga. App. 365 (1) ( 108 SE 309); Byfield v. Candler, 33 Ga. App. 275 (7) ( 125 S.E. 905). The deceased may have been a guest as to the living room, but that relationship did not extend to the defendant's bedroom. He may have had the "run of the house" as to those portions in which all guests or boarders were permitted — the living room, dining room, kitchen, hall and perhaps the bathroom. His own bedroom was his habitation, and no other guest of the house was entitled to go there without his invitation. And so it was with the defendant's bedroom. Cf. Code § 26-2401; Jones v. State, 75 Ga. 825 (2); Trice v. State, 116 Ga. 602 ( 42 S.E. 1008); Bacon v. State, 85 Ga. App. 630 (1) ( 70 S.E.2d 54), reversed on other grounds in 209 Ga. 261 ( 71 S.E.2d 615).
But there are other reasons why failure to charge on this matter was not error. The statute applies only "after persuasion, remonstrance, or other gentle measures used" unless the circumstances are such that there is no time or opportunity for doing so. Palmour v. State, 116 Ga. 269 ( 42 S.E. 512); Pyle v. State, 187 Ga. 156, 159, supra. The deceased was not armed. "After the verdict, the testimony is construed in its most favorable light to the prevailing party, which in this case is the State, for every presumption and inference is in favor of the verdict." Wren v. State, 57 Ga. App. 641, 644 ( 196 S.E. 146). The deceased followed the defendant to the door of her bedroom and when she tried to lock it, pushed his way on in, after having asked her to wait so that he might talk with her. After getting into the room, and before the deceased closed the door by kicking it to, defendant got a gun from the dresser drawer, placed it in her pocket and kept her hand on it. She asked the deceased to leave her alone and not start any trouble, whereupon he struck her in the face and she shot him in the leg. He struck her two or three more times, and she shot him again, this time fatally.
Can it be said that the defendant sought either by persuasion, remonstrance or other gentle measures to keep the deceased from entering her bedroom, or that she used these in any effort to get him to leave after he entered? She did state that she asked him to leave her alone and not to start trouble, but that is quite another thing, going to the matter of self-defense. The circumstances do not appear to have been such that the defendant could not have tried to use persuasion and the like to prevent the deceased from entering. She knew that he was following her to the room. Once in the room she moved hastily to get the gun from the dresser drawer and place it in her pocket.
But the question need not be answered. Even if it be concluded that the facts do raise the matter of defense of habitation, the defendant's main defense was self-defense on which the court charged fully. That was her contention all through the trial, and it is conceded in her brief here. There was no request that the defense of habitation in the language of Code § 26-1013 be charged. "Where in a criminal case two distinct and independent theories of defense are raised by the prisoner's statement, each having its foundation solely in that statement, it is not error, in the absence of a proper request, for the trial judge to wholly fail to charge as to one of these theories, although he may have charged the law applicable to the other." Jackson v. State, 192 Ga. 373, 374 ( 15 S.E.2d 484). Accord: Smith v. State, 117 Ga. 259 ( 43 S.E. 703); Prince v. State, 180 Ga. 796 (5) ( 180 S.E. 768); Bolton v. State, 107 Ga. App. 883 (2) ( 131 S.E.2d 862). Neither self-defense nor defense of habitation could be found in this record unless in the defendant's statement. Nor would it matter whether the statement was made from the stand or made out of court.
Moreover, there is the unbroken line of cases, pointed out in the special concurrence, holding that it is not error for the court to fail to charge on any theory of defense raised solely by the defendant's statement, absent a timely and proper request. Whisman v. State, 221 Ga. 460 (8) ( 145 S.E.2d 499); Brawner v. State, 221 Ga. 680 (3) ( 146 S.E.2d 737).
2. It is contended that the charge of Code § 26-1011, though correct in itself, was incomplete and erroneous because not supplemented by a charge of Code § 26-1013. "Where an extract from the charge of the court is in itself correct and proper, it is not subject to exception because of failure to give a certain additional instruction." Grier v. State, 43 Ga. App. 348 (5) ( 158 S.E. 634). Accord: Jones v. State, 197 Ga. 604 (5) ( 30 S.E.2d 192); Whiting v. State, 108 Ga. App. 374 (2) ( 133 S.E.2d 50). This contention is without merit.
3. Defendant assigns error upon the refusal of the court to give a timely written request defining habitation: "In this respect, `habitation' need not be defined as the entire dwelling house of that person, but can be interpreted as being a part thereof that is peculiarly private to the defendant as opposed to other inmates thereof, either by agreement or by course of conduct, and to which other inmates thereof have no special right of use or occupancy by reason of the tenancy of the dwelling house in general."
"`A request to charge should in itself be correct, and even perfect; otherwise the refusal to give it will not be cause for a new trial. Etheridge v. Hobbs, 77 Ga. 531 ( 3 S.E. 251).' Macon, Dublin c. R. Co. v. Joyner, 129 Ga. 683 (5), 688 ( 59 S.E. 902). It must be legal, apt, and precisely adjusted to some principle involved in the case, and be authorized by the evidence. Lewis v. State, 196 Ga. 755 (3), 760 ( 27 S.E.2d 659); Downs v. Powell, 215 Ga. 62 ( 108 S.E.2d 715). A request to charge is not perfect in form when an inference is required to make it correct, and there is no error in refusing to give such a request. Norris v. State, 184 Ga. 397 (3) ( 191 S.E. 375). Unless a request to charge is itself a complete statement of the principle invoked, without requiring any addition to make it perfect, a failure to give it will not require a new trial. Head v. Bridges, 67 Ga. 227 (4)." Cates v. Harris, 217 Ga. 801, 802 ( 125 S.E.2d 649).
It is contended that this request was tendered in connection with a theory of defense of habitation raised by the defendant's statement. While it may have been a correct definition of "habitation" in that context, yet it was by no means a complete statement of the principle invoked, i.e., defense of habitation. To make it perfect it would have been necessary to add considerably to it, as for example the applicability of the theory if the deceased made a forcible attack and invasion of the defendant's habitation which she was unable to prevent by persuasion, remonstrance or other gentle measures, that the killing of the deceased was absolutely necessary to prevent the attack and invasion and that a serious injury to her, her property or family was intended by the deceased, in which event the killing would be justifiable homicide. If it be conceded that the defendant's statement was sufficient to raise the theory of defense of habitation, as well as that of self-defense, it was nevertheless not error to refuse this imperfect request.
4. In the charge to the jury the court stated that "in all criminal trials the defendant is allowed to make to the court and jury such statement in her own behalf as she sees fit to make. Her statement is not under oath and it is not, in this case, subject to cross examination and you are authorized to give it only such weight and credit as you think it is entitled to receive. You may believe it in whole or in part. You may believe it in preference to the sworn testimony in this case, or you may disbelieve it altogether." The complaint is that the inclusion of the phrase "in this case" in stating that the defendant's statement was not subject to cross examination emphasized that under Ga. L. 1962, p. 133 ( Code Ann. § 38-415) the defendant could have been sworn and subject to cross examination, thereby lessening the weight or credibility which the jury might attribute to the statement. The charge is not subject to this criticism. It is no more than a statement of the law as it applies when the defendant has elected to make an unsworn statement. Ash v. State, 109 Ga. App. 177 ( 135 S.E.2d 507). It went no further. If, in this connection, the court had further charged that the defendant had the right to testify under oath and to be examined and cross examined as other witnesses it would have come within the proscription of Lynch v. State, 108 Ga. App. 650 ( 134 S.E.2d 526), and McCann v. State, 108 Ga. App. 316 ( 132 S.E.2d 813). See also McDougald v. State, 109 Ga. App. 681 (3) ( 137 S.E.2d 383); Thurmond v. State, 198 Ga. 410, 417 ( 31 S.E.2d 804).
Judgment affirmed. Felton, C. J., Bell, P. J., Frankum, Jordan and Hall, JJ., concur. Pannell and Deen, JJ., concur specially. Nichols, P. J., dissents.
1. In my opinion, it is not necessary to determine whether or not the defendant's statement presented a defense of justifiable homicide under Code § 26-1013. Assuming, without deciding, that such defense was set up by her statement, it was set up by her statement alone and not by any other evidence or testimony in the case. It is not error for the court to fail to charge on the theory of defense raised solely by defendant's statement, in the absence of a proper written request. Hart v. State, 28 Ga. App. 258 (1) ( 110 S.E. 745); Saunders v. State, 43 Ga. App. 59 (7) ( 158 S.E. 433); Glover v. State, 46 Ga. App. 663 (1) ( 168 S.E. 788); Brown v. State, 150 Ga. 756 (1) ( 105 S.E. 289). Under these circumstances, the failure to charge said Code section without request is not reversible error. See, also, the cases cited in the majority opinion, to wit: Jackson v. State, 192 Ga. 373, 374 ( 15 S.E.2d 484); Smith v. State, 117 Ga. 259 ( 43 S.E. 703); Prince v. State, 180 Ga. 797 (5) ( 180 S.E. 768); Bolton v. State, 107 Ga. App. 883 (2) ( 131 S.E.2d 862). To the extent indicated above I agree with the majority opinion in Division 1, and to that extent only. The case of Downs v. State, 175 Ga. 439 ( 165 S.E. 112), cited by Judge Nichols in his dissent, was a case where the testimony of witnesses and other evidence, aside from the defendant's statement, created the issue of defense of habitation under Code § 26-1013, and it was held to be error to fail to give such section in charge even in the absence of a request, and such case was not authority for the ruling made in Frazier v. State, 88 Ga. App. 82 ( 76 S.E.2d 70), also cited by Judge Nichols.
2. I concur in Division 3 of the opinion, that the request to charge was not a perfect request because it was prefaced with the language "in this respect." I do not concur in other reasons given therein.
3. I concur in the other divisions of the opinion.
I am authorized to say that Judge Deen joins in this special concurrence.
1. Under the decision of the Supreme Court in Downs v. State, 175 Ga. 439 ( 165 S.E. 112), and of this court in Frazier v. State, 88 Ga. App. 82 ( 76 S.E.2d 70), the charge on justifiable homicide in defense of habitation should have been given even in the absence of any request. While it is true that the court charged generally on justifiable homicide ( Code § 26-1011), as pointed out in the Downs and Frazier cases, supra, such charge is not sufficient where the defense is based on justifiable homicide under conditions bringing it within Code § 26-1013 dealing with defense of habitation.
The majority opinion holds that the defendant did not attempt to use persuasion, remonstrance or other gentle means to seek to persuade the deceased to leave her room and at the same time quotes from her statement the following which shows that she did attempt to use such persuasion and gentle means to get the deceased to leave her room: "I figured if I could get him out of the room without any trouble, that would be the best way. So I said to him: `Lee, please go on and leave me alone. Don't start no more trouble.'" It was only after this occurred and the deceased struck the defendant that she fired the gun.
2. The charge requested by the defendant defining "habitation" was upon a subject raised by the defense and when considered with the charge which should have been given on defense of habitation was not imperfect and did not require any inference not required to be charged even without request.