Opinion
31486.
DECIDED JANUARY 23, 1947.
Voluntary manslaughter; from Laurens Superior Court — Judge Camp. October 3, 1946.
Lester F. Watson, for plaintiff in error.
W. W. Larsen, Solicitor-General, E. L. Stephens, contra.
1. The evidence amply sustains the verdict of manslaughter on the general grounds.
2. ( a) The evidence did not authorize a charge on involuntary manslaughter in either of its phases.
( b) The court did not err in this ground for the reasons stated in the opinion.
DECIDED JANUARY 23, 1947.
The defendant was tried for the murder of Floyd Bell. A verdict of guilty was returned against him for voluntary manslaughter, with a recommendation of a minimum sentence of four years, and a maximum of six years. He filed his amended motion for a new trial, which was overruled, and on this judgment he assigns error. Essentially, the evidence for the State reveals that the deceased and the defendant, together with several others, were engaged in a card game. They were playing and betting near a swamp approximately 300 yards from the dwelling house of Etta Mitchell. The defendant had left his automobile at the home of Etta Mitchell. During the progress of the game the defendant, Jim Metts, and the deceased, Floyd Bell, became engaged in a fist fight resulting from a $2.00 bet after hot words between them. Their companions separated them. It appears that the deceased struck the defendant several times with his fist. Shortly thereafter the group left, all going across a field and upper pathway to the dwelling house of Etta Mitchell. The deceased was a few paces ahead of the defendant as they approached within the curtilage of the dwelling. At this point the defendant picked up a glass container, or a portion of one, and threw it toward the deceased, who dodged it. A few moments previous thereto the defendant had taken his knife from his pocket and opened it. When the glass was thrown he held the knife in his left hand, and after the glass was thrown the defendant changed the knife from his left to his right hand, rushed toward the deceased and stabbed the deceased one time in the heart. From this wound the deceased died in about one hour. When the deceased was stabbed he went to the ground with the deceased on top. The deceased requested the others there to take the knife from the defendant. Several of them in an effort to separate the deceased and the defendant became involved in the melee and did take the knife from the defendant. After the deceased was cut he arose from the ground and he and the defendant engaged in a tussle or fist fight. After being stabbed, the deceased bled profusely and it is inferable from the evidence that he was not thereafter of much service to himself. All of the State's witnesses testified that the deceased had no weapon at all and was making no sort of attack on the defendant at the time the mortal blow was inflicted.
As to the evidence for the defense, including the defendant's statement, there is very little material difference as to the facts of the occurrence except some of the witnesses for the defendant testified that the defendant was in front instead of behind the deceased as they approached the dwelling and except that the defendant in his statement contended that the deceased and his brother and one other threw the defendant down and that the defendant cut in self-defense. None of the witnesses for the State testified that the deceased had any kind of weapon at all at any time.
1. As to the general grounds, the evidence amply sustains the verdict of voluntary manslaughter.
2. Special ground 1 (a) complains that the defendant is entitled to a reversal because the court failed to charge the law of involuntary manslaughter and that the jury would have found him guilty of involuntary manslaughter had the court submitted to the jury the law of involuntary manslaughter. The court submitted the law of murder, voluntary manslaughter and justifiable homicide. In our opinion these were the only grades of homicide authorized under the evidence and the court did not err in failing to charge the law of involuntary manslaughter in either of its phases.
(b) Special ground 2: Error is assigned in this ground on a recharge of the court. After the jury had deliberated for some time they returned to the trial room and the foreman stated to the court that the jury wished the court to define involuntary manslaughter. The court responded that they should try the case on the law which the court had already given them in charge, that the law of involuntary manslaughter was not involved in the case. The foreman then stated that the court had not charged them on involuntary manslaughter. The court said "No." The foreman then inquired of the court the penalty for voluntary manslaughter. The court stated: "From one to twenty years. It is discretionary with the jury. Should you find him guilty of voluntary manslaughter, you punish him according to what you think he deserves. I will approve on up to 20 years. The law requires that you find a minimum and a maximum sentence. The grades of homicide involved in this case are murder, voluntary manslaughter, and justifiable homicide. Those are the three things for you to consider." The errors assigned on this ground are (1) that the court in the recharge took away from the jury the right of finding the defendant guilty of involuntary manslaughter and that the evidence required the court to charge it; (2) that the expression that he would approve up to 20 years was calculated to lead the jury to believe that the court was expressing itself that he would approve a verdict of guilty with the extreme punishment for voluntary manslaughter. When we view the whole charge in connection with the recharge, we think a proper construction of it is that the court was but reiterating the maximum punishment for voluntary manslaughter which had been explained in the original charge and which was reiterated in the recharge. It will be noted that in the recharge that the court stated that the punishment was from one to twenty years, that the number of years was discretionary with the jury, and that the law required them to find a minimum and a maximum sentence. The jury did not construe the recharge as the plaintiff contends, for they returned a verdict for a minimum of four years and a maximum of only six years. We have decided the special grounds on their merits, and have not considered them from the viewpoint that it is insufficient in a motion for a new trial to allege only that the court failed to charge involuntary manslaughter without specifying which grade. Knight v. State, 148 Ga. 40 (3) ( 95 S.E. 679); Troup v. State, 150 Ga. 633 ( 104 S.E. 421); Bradford v. State, 151 Ga. 334 ( 106 S.E. 718).
The court did not err in overruling the motion for a new trial for any of the reasons assigned.
Judgment affirmed. Broyles, C. J., and MacIntyre, J., concur.