Opinion
34022.
DECIDED APRIL 17, 1952.
Voluntary manslaughter; from Ware Superior Court — Judge Thomas. February 14, 1952.
E. O. Blalock, for plaintiff in error.
J. R. Walker, Solicitor-General, contra.
1. Since the evidence demands a finding that the killing was intentionally done in self-defense, the trial court did not err in failing to charge on the subject of involuntary manslaughter.
2. A verdict of guilty of voluntary manslaughter is not supported by evidence which shows that the defendant killed the deceased with a deadly weapon, where the same evidence which establishes this fact also shows that such killing was under circumstances of justification, and where there is no evidence to the contrary.
DECIDED APRIL 17, 1952.
Homer Thomas was indicted in the Superior Court of Ware County for murder, and was convicted of voluntary manslaughter. No eyewitness testified to the shooting. Two witnesses testified, as to acts immediately preceding the shooting: that they were drinking beer in the dance hall belonging to the defendant, and that the defendant was in the adjoining room back of the counter; that the deceased, Herbert Davis, at the time they first noticed him was engaging in a fight with one Mote Milton in the dance hall, and that the deceased hit Milton; that they decided to leave and, as they were quitting the place, saw the deceased go into the room where the defendant was and approach the counter, and saw the defendant with a blackjack in his hand; that they left the building and very shortly thereafter heard a shot. This constituted all the direct testimony as to the affray. A deputy sheriff and an employee of the Georgia Bureau of Investigation, who arrived within a half hour thereafter, found the deceased dead beside the counter next to a little door which led behind it; found a broken beer bottle back of the counter, and several drops of fresh blood on the floor and bottles behind the counter, and noticed that the defendant had a large bruise on his face which, however, was not bleeding. The defendant immediately handed the officers the pistol, stated that he had killed the decedent, and then made a statement in which he related that the decedent had attempted to grab one of the girls in the rear of the establishment, and that she had appealed to him for protection; that he had put in a call for the police officers; that the deceased had hit another man in the dance hall and had engaged in an altercation with Milton, had then approached the counter behind which he was standing, and had said, "Yes, you called the law, you yellow son of a bitch, I am going to take care of you now"; that the decedent then attempted to go behind the counter with a beer bottle upraised in his hand; that the defendant called on him to stop and, when he did not stop, fired a wild shot to intimidate him, but the decedent continued to advance and broke the beer bottle over the defendant, hitting him on the cheek; that the defendant then fired again without aiming and the shot entered the body of his assailant, causing his death within a few minutes thereafter. The police officers further testified that they had received three calls from the dance hall before their arrival, the first two informing them that a fight was in progress, and the third that a man had been killed. The decedent's wife also made a statement to the police officers in which she said that her husband had told her earlier in the evening that he "was going to get him a son of a bitch," but did not identify the object of his hostility.
The defendant put up no witnesses and made no statement. From an adverse verdict finding him guilty of voluntary manslaughter, the defendant filed his motion for a new trial on the general grounds and later amended it by adding one special ground. The denial of this motion is assigned as error.
1. The special ground of the amended motion for a new trial complains of the failure of the trial court to submit to the jury the law of involuntary manslaughter as defined in Code § 26-1009. As was pointed out in the statement of facts herein, the defendant offered no evidence and made no statement upon the trial. The State relied solely on the fact that the deceased was found dead from a pistol-shot wound in the place of business of the defendant; that the defendant made a statement to the arresting officers, on their arrival at the scene immediately following the shooting, that it was he who fired the fatal shot, and certain other facts and circumstances leading up to and surrounding the shooting, all of which are more fully set forth elsewhere in this opinion. The only inference that may be drawn from these facts and circumstances is that the defendant shot and killed the deceased under circumstances of justification, but that he did so intentionally and in self-defense. The evidence, therefore, does not support any theory of involuntary manslaughter in the commission of an unlawful act. Drane v. State, 147 Ga. 212, 213 (2) ( 93 S.E. 217); Inman v. State, 174 Ga. 167 (3) ( 162 S.E. 124). The special ground of the amended motion for a new trial is without merit.
2. In a consideration of the general grounds, attention is directed to Smith v. State, 203 Ga. 317, 324 ( 46 S.E.2d 583), where it was held as follows: "This court has repeatedly held that where a killing with a deadly weapon is proved to be the act of the defendant, the presumption of innocence is removed and the burden is then upon the defendant to justify or mitigate the homicide, unless the evidence offered by the State shows justification or mitigation." (Emphasis added.) See also Vann v. State, 83 Ga. 44 ( 9 S.E. 945); Lewis v. State, 90 Ga. 95 ( 15 S.E. 697); Dorsey v. State, 110 Ga. 331, 333 ( 35 S.E. 651); Williford v. State, 121 Ga. 173 ( 48 S.E. 962).
As has been previously herein pointed out, the defendant offered no evidence and made no statement. Whatever is disclosed by the evidence in this case must come from that offered by the State. The killing with a deadly weapon is shown without dispute. The defendant stated this fact to the officers immediately upon their arrival. This statement, however, included other facts showing justification for his act. Every material part of this statement is corroborated and supported by other facts and circumstances, all of which come from the State's evidence. It follows, therefore, that the presumption of innocence as set out in the foregoing rule was not removed and the burden of proof was not at any time upon the defendant to justify or mitigate the homicide here, because this case clearly falls within the exception to that rule shown above in italics. The evidence fails to support the verdict, and the trial court erred in overruling the motion for a new trial on the general grounds.
Judgment reversed. Gardner, P. J., and Carlisle, J., concur.