Opinion
13511.
OCTOBER 16, 1940.
Murder. Before Judge Fortson. Clarke superior court. August 10, 1940.
J. T. Middlebrooks and John J. Blount, for plaintiff in error.
Ellis G. Arnall, attorney-general, Henry H. West, solicitor-general, and Herschell E. Smith, assistant attorney-general, contra.
1. Where there was no evidence requiring or authorizing a charge upon the subject of voluntary manslaughter, it was not error for the court to omit to charge on this subject, even though the statement of the accused authorized such a charge, there being no request in writing so to charge. The omission, without request, to charge the jury on a theory which finds support only in the prisoner's statement at the trial is not erroneous. Felder v. State, 149 Ga. 538 ( 101 S.E. 179); Hill v. State, 169 Ga. 455 (5) ( 150 S.E. 587); Turner v. State, 190 Ga. 316 ( 9 S.E.2d 270).
2. The evidence fully authorized the verdict, and the court did not err in refusing a new trial.
Judgment affirmed. All the Justices concur.
No. 13511. OCTOBER 16, 1940.
Arthur Massey, alias Arthur Mills, was indicted for the murder of Irene Taylor by shooting her with a pistol. The jury returned a verdict of guilty, without recommendation. The defendant's motion for a new trial, based on the general grounds and one special ground, was overruled. Error was assigned on that judgment. Evidence for the State was to the effect that on the morning of April 10, 1940, the defendant went to the house of Irene Taylor in Athens, Georgia, and without sufficient provocation or justification shot and killed her. Joe Sims, the only eye-witness to the homicide, testified, in substance, as follows: On the morning of the homicide he went with a friend, Beatrice Thrasher, to the room which she shared with Irene Taylor, the deceased. Irene Taylor was at home, and witness and the two women drank a half pint of liquor together. After they had finished drinking the liquor, the defendant came to the house and asked Irene Taylor to come outside. She went out and talked with the defendant for five or ten minutes. When she came back in, she was heard to tell the defendant, "The one you think I am going with I ain't thinking about." The defendant asked her to go outside with him again, and when she refused to do so he came into the room and struck her on the neck while she was sitting in a chair. Asked why he had hit her, the defendant replied, "I come to kill you this morning." Irene got out of the chair and went to the fireplace, and was standing there when the defendant shot her in the chest with a pistol. Irene "didn't have any weapon or any knife, and she wasn't doing anything to him. . . I did not know of any trouble that they had had before, and Irene did not offer to hit him at all." Irene fell over on the bed and died almost immediately. The defendant stood there and "looked at her a minute, and then went out and slammed the door behind him; and that is all that happened." At the time of the shooting Beatrice Thrasher was not present, as she had gone to a near-by store. Witness left the room immediately after the defendant left, by another door. The doctor who examined the body of the deceased testified that he carefully examined the room in which the shooting took place, and that there was no sign of any struggle. There was evidence that the defendant could not be found in Athens after the shooting, and that he was arrested in Atlanta some time later. J. M. Nelms, a city policeman, testified that the defendant freely and voluntarily confessed the killing. He first stated the deceased had a knife when he shot her, but he later said he wanted to tell the truth, "and said Irene had nothing and offered to do him no harm; that he just flew mad and shot her." He finally said that his only excuse for killing her was that he was "just fretted."
The defendant offered no evidence. He made the following statement: "Gentlemen of the jury, the morning that Irene sent for me I was on the job, and she sent a kid. I forget the kid's name. I just would know him if I see him. And so when I first went there she asked me to give her a half pint of whisky, and I give her one, and then I walked back to the corner, and she sent for me again, and when I went back down there Irene and this here Joe Sims jumps up from the table, both of them, and both were cussing, and then that is when I outs with the pistol and shot. I forgot to tell about the weapons and knives and things. One of them had a knife, and Joe Sims had his hand in his hip-pocket, and that is when I shot. He come from around the table this way, and she come around from towards the fireplace, and that is when I shot. That is all I want to say."