1. On the trial of the defendant under a murder indictment, all transactions between the defendant and the decedent immediately preceding the killing and which would tend to throw light on the state of mind of the parties at the time are admissible in evidence. In the present case, where the defendant's statement, which was supported by some corroborative evidence, was to the effect that he was forced in self-defense to shoot a member of a mob which had organized to do violence to a policeman, the policeman having left the scene with his aid just prior to the shooting, it was error to exclude testimony of the police officer as to this transaction and the temper of certain members of the mob at the time he was aided by the defendant in leaving the scene.
2. The words of Code 26-1012 dealing with the fears of a reasonable man in connection with justifiable homicide which were omitted by the court in its instructions to the jury rendered this portion of the charge incomplete, confusing and erroneous.
Roosevelt Shellman was indicted in the Superior Court of Bryan County for the offense of murder and was convicted of voluntary manslaughter. His motion for new trial on the general grounds and 3 special grounds was denied and this judgment is assigned as error.
Obviously it was difficult for the defendant to establish his theory by witnesses present because, according to the theory, they were all members of the mob and were angered at him because he would not join it. Aside from his statement, however, there is some corroborating evidence which supports the theory. The decedent made what was admitted in evidence without objection, a dying declaration in which he admitted that such a movement was on foot but denied that he was in any way participating in it. The main witness in support of the theory was the police chief himself who went into this part of Pembroke, apparently on a routine round with his car. The facts which he offered to testify to and which were excluded and which would have supported the theory of the defendant are as follows: that he drove into the area where some 40 Negroes were assembled; that when he drove up a brother of the decedent and others including the decedent himself approached his car and took him to task about an arrest he had made a short time previously of another Negro; that the attitude of the mob was belligerent and threatening; that one of them drove a car into the rear of his car so that he could not back up; another drove his car into the front so that he could not move his car forward; that he himself was afraid of trouble with the mob and felt the necessity for getting out of the area; that while he was being condemned by members of the mob the defendant spoke up in his behalf and undertook to appease the mob by pointing out that in making the previous arrest, which was the basic reason for the ire of the mob, the police chief had no doubt only done his duty; that this caused brothers of the decedent in his presence and probably also the decedent himself to heap vile epithets upon the defendant such as "white-loving S.O.B."; that in order to get away from this dangerous situation the defendant moved his car which was already parked in its position before the police chief arrived so that the chief could drive his car out of the mob into a place of safety. This left the defendant by himself and pitted against 40 mobsters. The police chief immediately went to the mayor and reported this incident. The killing followed within 20 minutes thereafter.
Clearly, under Haynes v. State, 17 Ga. 465 et seq., the testimony of the police chief which was excluded was not only admissible but was supporting testimony of the whole theory of the defendant. In that case evidence was offered by the defense to the effect that the decedent was seen, on the night before the killing, throwing rocks into the defendant's yard, and the error was held to be that the evidence was admitted but restricted to the issue of malice on the part of the accused when it had been offered to support the theory of the defense that the shooting arose in self-defense in the course of proper action on the defendant's part to regain use of a joint well from the deceased. The court there said (p. 484): "This court stands pledged by its past history, for the abolition, to the extent of its power, of all exclusionary rules, which shut out facts from the jury which may serve, directly or remotely, to reflect light upon the transaction upon which they are called upon to pass. For one case gained by improper proof, ninety-nine have been lost or improperly found, on account of the parties being precluded, by artificial rules, from submitting all the facts to the tribunal to which is committed the decision of the cause. Verdicts, notwithstanding their etymological meaning, (vere dicto) will never speak the truth, because juries can never measure the power and influence of motives upon the actions of men, until the door is thrown wide open to all facts calculated to assist, in the slightest manner, in arriving at a correct conclusion in the pending controversy." See to the same effect Reese v. State, 7 Ga. 373 (3); Baker v. State, 142 Ga. 619 (83 S. E. 531); Jackson v. State, 18 Ga. App. 683 (1) (90 S. E. 368); Coleman v. State, 141 Ga. 737 (3) (82 S. E. 227), and Curington v. State, 162 Ga. 307 (1) (134 S. E. 41), all holding that transactions between the defendant and the decedent preceding the killing and which would tend to throw light on the state of mind of the parties at the time, as well as other pertinent facts, are admissible in evidence. Accordingly, the exclusion of the evidence complained of in special ground 1 of the amended motion for new trial was reversible error.
2. Grounds 3 and 4 of the amended motion complain of the omission by the court, in his charging of Code 26-1012, of the words "to justify the killing. It must appear that the circumstances were sufficient." Code 26-1012 constitutes a limitation of Code 26-1011 wherein justifiable homicide is defined and in addition thereto makes provision for the fears of a reasonable man. The limitation excludes as a defense a bare fear of those offenses to prevent which the homicide is alleged to have been committed, which offenses are enumerated in the definition of justifiable homicide by Code 26-1011. Accordingly, the charge of 26-1012 omitting the words complained of in these grounds of the amended motion for new trial takes from this defense its full complete meaning; it was likely that this error resulted in confusing and misleading the jury, and it constitutes an incorrect statement of the law as an abstract principle. Since the case is to be tried again it is unnecessary to determine here whether this error is sufficient alone to require reversal. However, on another trial it is suggested that this Code section be charged in accordance with the language contained in it.
The trial court erred in denying the motion for new trial.
Judgment reversed. Townsend and Carlisle, JJ., concur.