Opinion
13868.
NOVEMBER 12, 1941.
Murder. Before Judge Worrill. Randolph superior court. June 14, 1941.
Olin Hammock and Joe M. Ray, for plaintiff in error.
Ellis G. Arnall, attorney-general, R. A. Patterson, solicitor-general, Hooper, Hooper Miller, E. J. Clower and C. E. Gregory Jr., assistant attorneys-general, contra.
If a killing be not under circumstances of justification under the Code, §§ 26-1011-26-1017, "but in the course of a rencounter in which the participants engage with a mutual intention to fight, the offense may be voluntary manslaughter as related to mutual combat." Shafer v. State, 191 Ga. 722 (3) ( 13 S.E.2d 798); Tate v. State, 46 Ga. 148 (2, 3), 157; Daniels v. State, 157 Ga. 780 (3) ( 122 S.E. 223), and cit.; Bailey v. State, 148 Ga. 401 (1, a), 402 (96 S.E. 862); Ison v. State, 154 Ga. 408, 417 ( 114 S.E. 351), s. c. 155 Ga. 877 ( 118 S.E. 721); Slocumb v. State, 157 Ga. 131 (3, a, b) (121 S.E. 116); Benton v. State, 185 Ga. 254 (5), 256 ( 194 S.E. 166). However, "although there may be a mutual intention and agreement to fight, yet if one of the disputants kill the other with malice, it is murder," since in such a case the killing would not be the result of that sudden and violent heat of passion which by reason of its irresistibility would constitute voluntary manslaughter. Freeman v. State, 70 Ga. 736 (3); Gann v. State, 30 Ga. 67, 72.
( a) "In an alleged situation requiring the killing of another in self-defense, `one can not create an emergency which renders it necessary for another to defend himself, and then take advantage of the effort of such other person to do so.'" Daniel v. State, 187 Ga. 411, 412 ( 1 S.E.2d 6).
( b) Under the rules stated, no question being raised as to any charge or failure to charge, but the exceptions being limited to the general grounds, the contention that the evidence demanded a verdict of voluntary manslaughter under the doctrine of mutual combat is without merit. While there was testimony that the defendant and the deceased were "tusseling" and "tied up fighting," the testimony showed that the defendant provoked the trouble by cursing the deceased and others; and that the defendant was the aggressor, armed with a long pocket-knife with which she attacked first another woman and then the deceased, and inflicted wounds in the neck of the deceased, from which she died in a few minutes. Although it appears that the deceased struck the defendant once with a stick and cut her with a knife, it further appears that the blow with the stick was not struck until after the defendant had advanced with her knife on the deceased, and that the knife used by the deceased was the knife of the defendant, which the deceased took away from her and did not use until after the fatal wounds had been inflicted. There was also testimony as to a statement, made by the defendant just before the homicide, indicating express malice, in which the defendant said with an epithet that the deceased is "the . . I want;" and another statement, made by the defendant immediately after the homicide, with the same epithet, that "I got the . ."
Judgment affirmed. All the Justices concur.
No. 13868. NOVEMBER 12, 1941.
The defendant was found guilty of murder by cutting the deceased with a knife, and was recommended to mercy. For the State, Agnes Jones testified that, while she, the defendant's husband, his brother, and another woman were standing in the street, the defendant came up and cursed them, and continued to do so in a cafe; that when they were ordered out, the defendant said, "Go on ahead, I am not mad," and she said she was mad with that s ____ of a b ____; that was the deceased; that the defendant had a long "switch-blade" pocket-knife when she started cursing; that the next thing the witness knew, the two women, the defendant and the deceased, were "tusseling" and "tied up fighting;" but the witness did not know "what caused the disturbance;" that she saw no other knife; and that the defendant "was the only one that cussed," and said "You s ____ of a b ____; and she said that was the s ____ of a b ____ she wanted."
Carlotta Davis testified: "I don't know what the trouble was about. They just started fussing, her and" (the witness first mentioned); that when they got outside of the cafe, "they was still fussing," and the defendant said, "I don't want to fight you. This is the s ____ of a b ____ I want." She was talking about the deceased. The defendant had her "switch-blade" knife open, and "started on" the first witness, who "had to get a brick to get her off." The defendant then cursed the deceased with the same epithet; "she had a piece of stick, and she started at her with a knife, and she hit her and [the deceased] ran back and [the defendant] started cutting her. [The deceased] got hold of the knife; she slung it out of her hand and went to cutting [the defendant] with it. That was after she got cut. . . She didn't say anything about dying; they both said they wasn't cut, and we didn't know until she fell" a few minutes later. The defendant said, "That s ____ of a b ____ got it, but I got the s ____ of a b ____ ." On cross-examination this witness said that the deceased "didn't cut [the defendant] until after she was cut," and "didn't have nothing but a board" or "stick;" that "they were having a regular tussle;" that she saw the defendant stab the deceased, and saw the deceased cutting at the defendant with the knife, which the defendant said was the same one the defendant first had; and the witness saw the deceased hit the defendant one time on the head.
The defendant introduced no evidence, but in her statement to the jury she said that the witness, Agnes Jones, and the deceased "both jumped on me with their knives, . . and they had them open, and I had to cut aloose from them, and they stabbed me in the back and on the head and on the arm." In rebuttal, Agnes Jones denied that she and the deceased had attacked the defendant, denied that the defendant tried to "jump on me with a knife;" but said that she saw the defendant with a knife, and did not see the deceased with any knife. Carlotta Jones denied that she or Agnes Jones or the deceased attacked the defendant, and denied that Agnes Jones had a knife. She further testified that the defendant "started on Agnes . . with a knife, and she had to get after her with a brick."
The defendant's exceptions are limited to the general grounds.