1. Under the evidence in this case, the law of voluntary manslaughter was involved, and it was error to fail to give it in charge to the jury.
2. There was no evidence of mutual combat, and the court in its charge correctly omitted any reference to mutual combat.
3. The written request to give a more ample charge on the necessity of proving malice in a charge of murder was adjusted to the evidence in the case and should have been given in charge.
4. Ground 4-e was not argued and will be treated as abandoned.
5. Ground 4-f is an amplification of the general grounds. Since the case is returned for another trial, no ruling will be made on the general grounds.
Clarence McDaniel was indicted by the grand jury of Quitman County for the murder of Murray Hammond. He was convicted, with a recommendation of mercy, and the exception is to the judgment of the trial court overruling his motion for new trial as amended.
On the trial of the case it appeared that, on the Saturday evening before the homicide, the defendant, his brother, Junior McDaniel, his brother's wife, Grace McDaniel, the deceased, and Thelma Wilson, were at Mac's Motor Court in Eufaula, Alabama. According to the testimony of Thelma Wilson, they were having dinner at the motor court at about 12 o'clock p.m., Alabama time, and a dispute arose in regard to a tip for the waitress. The defendant slapped Grace McDaniel in the mouth, and her husband hit the defendant. The deceased interfered between the brothers, and the defendant told him, "Get out of the way, I will kill you." The witness stated that she did not see any weapon at that time in the defendant's hand. The witness and Grace McDaniel went to a doctor's office, in order that Grace McDaniel's injuries might be attended, and the deceased came by the doctor's office while they were there. Later he took the witness to her home, leaving there about 3 o'clock a.m., Alabama time, or 4 o'clock a.m., Georgia time.
J. R. Ogletree, Sheriff of Quitman County, testified that on Sunday morning he was awakened by Charlie Patterson, an employee of the defendant, who came by his home, and told him that the defendant "said come to the store quick as I could, something bad had happened." He put on his clothes quickly, and when he came out of his door it was 7:50 o'clock a.m., Georgia time. When he arrived at the store, known as "Junior's Place," the following occurred: "He [the defendant] got up, I could hear him in there, and opened the door and told me to come in, and Clarence fastened the door behind me. Clarence had a glass with a little liquor in it when he opened the door. He said, 'Sit down Bub, I want to tell you my troubles, I have played hell.' I sat down and Clarence went to telling me about him and Murray. He told me that Murray tried to come on him with a knife, he told him not to come, and he shot him. And he told me that Grace and Junior were the cause of him shooting him, that he had rather shot Myrtle, his wife, than to have shot Murray. I said, "Where is he,' and he told me 'in the front' and sort of broke down. I went in the front and saw Crap lying in the floor. I told Clarence, 'Come on and let's go to jail.' Clarence says, 'I will go anywhere you say go.' We come on out the building. I didn't search Clarence or anything, but I saw Clarence had a pistol in his right-hand pocket. I took that and Clarence says, 'Don't take that gun, I didn't kill him with that gun.' . . He said he shot him with the big gun inside the building . . . I called the investigators and they came down before anybody went in the building . . . Mr. Beacham was the first one got there . . . I went in there with Lt. Beacham . . . I saw a knife down there by him. That is the knife that shows in that picture, and that is the way he was lying . . . When I came back up there and carried Clarence to Cuthbert, I asked him on the way over there, 'How come you to shoot the boy so many times.' he said, 'I will tell you, I shot as long as he stood up and I don't know when he fell on the floor, I don't know.' . . . The investigators picked the knife off the floor. I don't know what one of the investigators picked it up. When he picked the knife up the blade of the knife was turned back and when he went to straighten it up the blade pulled out of the knife."
Lt. W. T. Beacham, of the Georgia State Patrol, testified in part as follows: "I went down to what is known as Junior's place . . . When we got in there we found in the front room the body of Murray Hammond sprawled out in the floor. Someone pointed out to me the gun lying on a shelf on the east side of the building. I also noticed the knife on the floor lying just behind the left ear of the deceased, Murray Hammond. I walked over and picked up the pistol and opened it up and looked inside and closed it . . . There were five empty shells in the pistol. The hammer stopped on an empty and the next didn't have a shell in it . . . I picked up the knife after Sgt. Franklin made the picture . . . When I picked it up I caught it by the handle and after I got it up even with my body, I took the blade in the other hand to close it and it come out. It stayed in there until I caught hold of the blade. I could not see any rivet in there.
Sgt. C. E. Franklin, with the Georgia Bureau of Investigation, testified substantially the same as Lt. Beacham concerning the knife, and further testified in regard to a statement made to him by the defendant as follows: "I had a conversation with this defendant in regard to this killing late on Sunday afternoon in the jail in Randolph County, I talked to him there . . . He was unable to state the time of the killing definitely . . . he went slightly over the difficulty had at his place in Alabama that night, said he and Junior had some trouble and Junior would not spend the night over there at his place; that Billy had to work the next day and he hated to ask him to go over there and spend the night, and he told Billy to give him the keys and he would go . . . He had been there approximately ten or fifteen minutes when Murray Hammond came in and he said they talked of several things at the time Murray was there. He didn't want to get in an argument with Murray and he left and went on down to his place. Shortly after arriving at his place, Murray came up and came on in and tried to get him to sell him a half-pint of whisky and he would not sell it to him. That Murray went to his truck parked out in front and got a full pint of Seagram's VO and brought in there, and said Murray kept drinking on the Seagram's VO and they kept talking, he didn't know how long, they discussed several subjects, no argument at all. That he went in the back to get him a bottle of beer and picked up a knife to open the bottle of beer but was unable to open it, seemed to recall there was no point on the knife blade to open it, then he got a can opener, and that Murray Hammond walked back in the kitchen to get him a can of beer in the ice box in the kitchen, and as Murray came out of the kitchen that Murray had a knife in one hand and a paper cup in the other. He didn't say what knife that was, just said he had a knife in his hand and a paper cup in the other hand, and that Murray was crying when he came out, and said Murray told him, 'Clarence, you have caused my mother and father to have two years of sleepless nights,' and he noticed then particularly that Murray did have the knife in his hand. He said he told Murray, 'Don't come back here, back of this counter,' but he said Murray kept coming in back of the counter; that the gun was there by the cash register and he reached and got the gun and he fired as Murray came back of the counter; after he fired the first shot Murray throwed his arm up like that and said, 'You better shoot, for I am coming.' Clarence said he thought he missed Murray and he kept firing. He said Murray never did fall but turned and took a step toward the door and said, 'I will get you,' and then fell down on the floor between the counter and the door. Then after the shooting was over, it unnerved him so he picked up his bottle of Seagram's VO whisky, a half-pint bottle that Murray had been drinking out of, and he drank the rest out of the bottle. He stated further that he went out the back door, got in his car and went to his place and told Billy Singleton what had happened, and I believe he said he told Billy to go and get Charlie Patterson and tell him to come over to the store. He stated that Murray must have gotten the knife out of the kitchen."
Lt. Beacham, recalled for the State, testified in regard to the statement of the defendant made to him and Sgt. Franklin, as follows: "I asked him where Murray got the knife from, and he said he had seen the knife, that he tried to open a can of beer with it just before that. He said he could not be sure about that, but he thought it was the same one. He said the only knife that he had ever seen Murray carry was a short one, he measured about that long. As to whether it was the knife that I picked up side the body that the blade fell out of that he was talking about--he said the knife found by the body was the knife Murray Hammond came on him with, was the one he thought was back in the kitchen. He said he had tried to open a can of beer with it."
Dr. Herman Jones, Director of Crime Laboratory for the State of Georgia, testified that he had examined the body of the deceased. He stated that five bullets had entered the body, and indicated the location of the wounds. He estimated by the powder burns that the deceased and the defendant were two or three feet apart at the time one bullet entered the body of the deceased; he could not find any other powder burns, indicating that they were more than 48 inches apart at the time the other wounds were received. There was no way to determine which bullet entered the body first. His test of the deceased for alcohol showed that he had been excessively drunk. He did not attempt to take any fingerprints off of the knife that was lying by the body of the deceased.
In his statement,the defendant related some of the occurrences of the evening before the homicide. In regard to the homicide, he stated in part as follows: "We never had a fuss. If we ever had a cross word in our lives, I never knew anything about it. He was drunk, but as far as my drinking, I had not touched a drop of whisky, until after it happened . . . He came in. That was nothing unusual, he had done it a thousand times I guess, when he knew I was over there. Well, when he came in, he said, 'How about a drink,' like that. I said, 'Murray, I laid the keys on the candy box back on the shelf, I don't know whether the key is on this bunch or not, you have used them since I have.' He says, That is all right, I think I got a drink in the truck.' He went to the truck and when he come back he had a full bottle of Seagram VO. He went to the cooler and got a Coca Cola out and set the whisky on the cooler. He got two paper cups and says, 'Come on, let's take a drink.' I said, 'No, I don't want one.' I don't know what he done with the other paper cup, he filled his full of Coca Cola and went to drinking. I says, 'I have been drinking a lot of coffee, I think I will drink a can of beer and see if it will off-set it.' . . . I went in the kitchen and got a can of Budweiser beer out of the refrigerator, I didn't know where the bottle opener was, and I saw a knife in there, blade like a handsaw, I tried it and could not open it with that. I looked around and saw a can opener hanging on a string which I was as close to it as to that door. I laid the knife back down and opened the can of beer, and went and set in a chair. We sat there and talked I guess I don't know how long, pretty good while . . . He kept on drinking, not fast, just fill up his cup full, and taken ten or fifteen minutes to drink it. I made the remark, 'He had better go home and get some rest,' and he remarked again he had to get up and go somewhere early. We talked about everything in the world, he even told about a new job he just got in Clayton or some place over there. He says, 'Let me take this last drink and I will go.' He says, 'There are two drinks in here, let's split it.' I says, 'No, I don't want one.' He poured him out a drink and set the bottle back down. I says, 'While you are drinking that,' I was standing up then, leaning with my back to the counter, facing the door, not behind the counter, but in front of it, I says, 'While you are doing that I think I will drink another can of beer.' He says, 'Wait, I will get it for you.' He was standing over next to the door. He took a drink and went in the kitchen. He wasn't in there I guess half a minute--just no time hardly. I heard him coming, sounded kinder like a man crying. It went all over him just in a minute looked like. When he came out he had a knife in his right hand and the paper cup in his left hand. I turned and faced him. I says, 'Boy, what is the matter with you.' He says, 'My mammy and daddy have worried two years on account of you.' All the time I was backing up. On the east part of the store the counter just circles, and I kept backing up. He says, 'I am going to kill you and get it over with now.' I says, 'What you talking about.' He says, 'You know you have offered as much as $250 to get my brother killed.' I said, 'Crap, you better chase yourself and get straightened up, chat is the matter with you.' I was near to the end of the counter on east side this way. I was just about in front of the cash register back of the counter.
1. The first ground of the amended motion for new trial (4-a) asserted that the trial court erred in failing to charge the jury the law of voluntary manslaughter as contained in the Code, 26-1007.
The State insists that under the State's evidence the accused is guilty of murder, and that under the defendant's statement, the killing was justifiable homicide, and that the law of voluntary manslaughter was not, therefore, involved. Where the killing is either murder or justifiable homicide, the law of voluntary manslaughter should not be charged. See Morgan v. State, 108 Ga. 748 (32 S. E. 854); Berry v. State, 122 Ga. 429 (50 S. E. 345); James v. State, 123 Ga. 548 (51 S. E. 577); Crawford v. State, 125 Ga. 793 (54 S. E. 695); Washington v. State, 136 Ga. 66 (70 S. E. 797); Irwin v. State, 194 Ga. 690 (22 S. E. 2d, 499).
In the present case, there were no witnesses who saw the homicide, and the State sought to prove that the defendant was guilty of murder by witnesses who related statements made to them by the defendant, and by an expert witness who testified concerning certain physical facts. The statements of the defendant, related by the Sheriff of Quitman County and two investigating officers, showed circumstances of justification or mitigation. In the defendant's statement to the jury his account of the homicide was in substance the same as the statements made to the officers.
Under all of the evidence, the jury would have been authorized to reject the defendant's claim that the homicide was justified. They might have believed, however, that the deceased was attempting to make an assault on the defendant which was less than a felony, in that the deceased, who was in a drunken condition, was advancing on the defendant with a small knife and making threatening remarks. -- Generally, under the law of this State, the crime of stabbing is a misdemeanor. Code, 26-1701.
"If one kills another, under the fears of a reasonable man, that the deceased was manifestly intending to commit a personal injury upon him, amounting to felony, the killing is justifiable homicide; if the prisoner is under similar fears of some injury less than a felony, the offense is manslaughter, and not murder." Keener v. State, 18 Ga. 194 (10). See also Monroe v. State, 5 Ga. 85, 86 (4); Crawford v. State, 90 Ga. 701(3) (17 S. E. 628); Mullis v. State, 196 Ga. 569, 579 (7) (27 S. E. 2d, 91).
Under the evidence in this case, the law of voluntary manslaughter should have been given in charge to the jury. See
Crawford v. State, 12 Ga. 142 (6)
; Dennis v. State, 93 Ga. 303
(20 S. E. 315); Bed v. State, 130 Ga. 865
(61 S. E. 996); Strickland v. State, 133 Ga. 76
(65 S. E. 148); Underwood v. State, 146 Ga. 137 (3)
(90 S. E. 861); Vernon v. State, 146 Ga. 709 (2)
(92 S. E. 76); Smith v. State, 147 Ga. 682
(95 S. E. 223); Booker v. State, 153 Ga. 117
(111 S. E. 418); Freeman v. State, 158 Ga. 369
(123 S. E. 126); Plymet v. State, 164 Ga. 677
(139 S. E. 349); Springer v. State, 180 Ga. 867
(181 S. E. 177); Burke v. State, 196 Ga. 702
(27 S. E. 2d, 313); Campbell v. State, 204 Ga. 399
(49 S. E. 2d, 867); Ellington v. State, 204 Ga. 456
, 457 (5) (49 S. E. 2d, 872); Faust v. State, 208 Ga. 53
, 56 (65 S. E. 2d, 148).
The trial court erred in overruling this ground of the amended motion for new trial.
In ground 4-b error was assigned upon the failure of the court to charge the jury in the language of a written request. The requested charge defined the law of murder, voluntary manslaughter, and justifiable homicide.
The law of murder and of justifiable homicide was fully covered in the charge as given to the jury, but it was reversible error not to charge the law of voluntary manslaughter, as heretofore he, Id.
2. Ground 4-c assigned error on the failure to charge the jury the law of voluntary manslaughter on the theory of mutual combat. There was no evidence in the case as to mutual combat, and there is no merit in this ground.
3. Error was assigned in ground 4-d upon the failure of the court to charge the jury, pursuant to a written request, as follows: "I charge you, gentlemen of the jury, that on the trial of a defendant charged with murder, that the burden is on the State to prove malice, either express or implied, and unless the State proves malice beyond a reasonable doubt, then there can be no verdict of guilty of murder, and there can be no murder without malice."
In the charge as given, the trial judge defined malice in the language of the statute, and he further charged the jury that the burden was upon the State to prove every material allegation of the indictment, and that, if from the evidence the jury should have a reasonable doubt as to the existence of any material fact necessary to make out the case as charged in the indictment, it would be the duty of the jury to give the benefit of the doubt to the defendant and acquit him.
In the absence' of a request, the charge as given would have been sufficient. Generally it may be assumed that jurors will understand that "malice aforethought" is a material allegation of the indictment, but, where the defendant presents a valid and correct request to charge elaborating on the principle that malice is an essential element in the crime of murder, such request should be charged Roberts v. State, 114 Ga. 450
(40 S. E. 297); Pickens v. State, 132 Ga. 46
(63 S. E. 783); Rowe v. Cole, 176 Ga. 592
(168 S. E. 882); Summer v. Boyd, 208 Ga. 207
(66 S. E. 2d, 51).
Judgment reversed. All the Justices concur, except Atkinson, P. J., not participating.