Opinion
14952.
SEPTEMBER 9, 1944.
Murder. Before Judge Paul S. Etheridge. Fulton superior court. May 19, 1944.
H. A. Allen and Gertrude Harris, for plaintiff in error.
T. Grady Head, attorney-general, John A. Boykin, solicitor-general, Durwood T. Pye, J. R. Parham, and Victor Davidson, assistant attorney-general, contra.
1. The verdict was authorized by the evidence.
2, 3. It is not error, in charging upon the law of voluntary manslaughter, to fail to qualify the statement, that "provocation by words, threats, menaces, or contemptuous gestures shall in no case be sufficient to free the person killing from the guilt and crime of murder," by presenting also the principle that words, threats, or menaces under the facts of the case might be sufficient to arouse the fears of a reasonable man that his person was in apparent danger of a felonious attack or that his life was in danger.
( a) The law of justifiable homicide having been properly charged, if the defendant desired an instruction to the effect that evidence of threats and menaces might be considered in connection with other evidence bearing on the subject of reasonable fears, he should have made a proper request therefor, if the facts warranted the giving of such an instruction.
4. The overruling of the motion for a mistrial, after sustaining an objection to the answer of a witness to a question, was not error, where the jury was instructed not to consider the testimony.
No. 14952. SEPTEMBER 9, 1944.
The plaintiff in error was convicted of murder and sentenced to death by electrocution. His motion for a new trial containing the general and three special grounds was overruled, and he excepted.
The evidence for the State was substantially as follows: The deceased (a soldier), in company with a girl, had left a store and started home along McDaniel Street, when the defendant walked up to him, cursed him, and asked what he meant by cutting that boy. The deceased said he had not cut anybody, and walked on home. The defendant was later heard to say that he was going to kill someone that night. A few minutes before the killing he went to a store, about two and a half blocks from where the deceased was killed, and ordered a pack of cigarettes from the waitress. As he was leaving the store he said that he was going down to the next business place and raise hell, and that he was going to get the soldier who cut his buddy. A few minutes later the defendant entered the Spence Beer Inn on McDaniel Street in company with Henry Glass. The deceased had been there about fifteen minutes when Glass walked up to him and, using obscene language, told him to shut up his talking. The deceased told Glass that he had not bothered anybody. Glass asked him why he cut that man, and the deceased, pulling his hands from his pockets, said that he had not tried to cut anybody, and did not have a knife. Glass called the defendant, who came up and began stabbing the deceased. At that time the deceased was doing nothing to the defendant, and was making no threats or motions. When the defendant began stabbing him, the deceased threw up his hands, asked the defendant not to stab him; and said that he had not bothered the defendant. Someone stopped the defendant from stabbing the deceased. The defendant went out, wiped his knife, and was told that he had better run as the law was coming. The deceased died as a result of the knife wounds. Two stab wounds were found on his body, each about three inches deep, in the upper portion of the chest, and entering "the aorta or some of the vital arteries." In his statement the defendant said: that he was in company with a boy named Oxford, walking down the street, and three soldiers and a girl were coming up the street; that Oxford knew the girl and stopped her, and while talking to her the deceased grabbed Oxford by the arm and cut him; that the deceased reached for him, and he ran up the street and met Henry Glass; that he and Glass went down the street, and the deceased followed them; that they went in the beer garden to get a bottle of beer, and the deceased came in behind them and started talking to Henry Glass; that the defendant was drinking a bottle of beer, when the deceased started on him again with his hand in his pocket, and he thought he was going to cut him, and hit the deceased with a knife. Henry Glass, sworn for the defendant, testified: that he did not know the deceased; that he saw the deceased cut another man; that the deceased came up to the witness in the beer parlor, and asked if the witness had anything to do with the fight, and upon the witness answering "No," the deceased apologized, and the witness started out of the door; that the deceased was killed immediately after he had apologized to the witness; and that the deceased "was not doing anything to anyone when he was killed."
1. The evidence was sufficient to authorize the verdict, and therefore the general grounds are without merit.
2. In special ground 1 the movant "insists that a new trial should be granted for the reason that nowhere in the charge did the court charge the jury that, while provocation by mere words, threats, or contemptuous gestures of and within themselves would not justify killing, nevertheless, if they were sufficient to arouse within the slayer the fear of a reasonable man that his life was in danger, or that a felony was about to be committed on his person, and he killed under the influence of such fear, then and in that event, the killing would be justifiable;" and that the court "nowhere in his charge gave the jury the opportunity to say by [their] verdict that the killing was justifiable, if they should believe that the threats or menaces, mentioned in the defendant's statement, were sufficient to arouse within him the fear of a reasonable man that his life was in danger, or that a felony was about to be committed on his person." We can not agree with the position of the plaintiff in error. In Gossitt v. State, 182 Ga. 535, 538 ( 186 S.E. 417), this court said: "The court charged: `provocation by words, threats, menaces, or contemptuous gestures shall in no case be sufficient to free the person killing from the guilt and crime of murder.' This charge was not erroneous on the ground, as contended, that the judge `did not instruct the jury, either in connection with this charge or elsewhere, that they might consider whether or not the words, threats, menaces, or contemptuous gestures were sufficient, under the circumstances surrounding the shooting, to arouse a reasonable fear on the part of the accused that his life was then and there in danger or that the life of his son was then and there in danger, and that he shot while under the influence of that fear.'" See also Deal v. State, 145 Ga. 33 ( 88 S.E. 573); Rawls v. State, 160 Ga. 605 (2) ( 128 S.E. 747); Hartley v. State, 168 Ga. 296 ( 147 S.E. 504). In a case where the facts warrant a charge to the effect that evidence of threats and menaces may be considered in connection with other evidence bearing on the subject of reasonable fears, the failure to so charge the jury is not reversible error in the absence of a timely written request. Futch v. State, 137 Ga. 75 (2 a) (72 S.E. 911); Hartley v. State, supra.
3. In special ground 3, the movant "insists that the court erred during the progress of the charge in giving the following charge to the jury: `Provocation by words, threats, menaces, or contemptuous gestures shall in no case be sufficient to free the person killing from the guilt and crime of murder.' Movant insists that this charge was error, because the court did not in this same connection and did not anywhere in the charge call the attention of the jury to the fact that while words, threats, or menaces will not and within themselves reduce a killing from the offense of murder to that of manslaughter, nevertheless, such words, threats, or menaces may justify a killing, if the circumstances be such as reasonably to arouse the fears of a man that his life is in danger, or a felony is about to be committed upon his person." Since this ground contains almost identically the same contentions as ground 1, it is controlled by the ruling in the preceding division of this opinion.
4. In special ground 4 the movant contends "that a new trial should be granted because, during the progress of the trial, counsel for the defendant asked Cecelia Neal [State's witness] the following question: `Why were you after Jimmie Lee so bad?' and she answered: `He was already in trouble, and had not been long out for shooting another boy, I guess.' When the witness made this answer, counsel for the defendant . . made a motion for a mistrial on the ground that he had not asked for such testimony, and that it was an unlawful attack on the character of the defendant. Whereupon, the court ruled out the answer, and instructed the jury not to consider it, but overruled and denied the motion for a mistrial. Movant contends and insists that it was error to deny the motion for a mistrial under these circumstances, because the answer of the witness was [as] a volunteer and [an] unlawful attack on defendant's character, and was highly prejudicial to his case, and calculated to do him great injury and arouse great prejudice, and it was not sufficient for the court simply to instruct the jury, as he did, not to consider that testimony, and to pay no attention to it; that they were interested only in what happened at the time and place of the alleged killing, and what led up to it, and not to be influenced by it . . that the instruction . . was not sufficient to remove the prejudice said testimony was calculated to arouse, and nothing short of a mistrial would have given the defendant the perfect protection against such prejudice as the law provides for." It will be noted that counsel for the defendant was himself responsible for eliciting the answer complained of in this ground. The trial judge, acting immediately, instructed the jury not to consider the statement of the witness, and ruled it out. Since the trial judge acted immediately and ruled out the statement of the witness, and instructed the jury not to consider the answer to the question in its deliberation, there is no merit in this contention. Holley v. State, 191 Ga. 804 ( 14 S.E.2d 103); Nelson v. State, 187 Ga. 576, 582 ( 1 S.E.2d 641); Worthy v. State, 184 Ga. 402 (3) ( 191 S.E. 457); Mimbs v. State, 189 Ga. 189, 192 ( 5 S.E.2d 770).
Judgment affirmed. All the Justices concur.