If a wife kills another woman to prevent sexual relations between such other woman and her husband, the killing is justified provided it was because of apparent necessity to prevent the commission of such sexual act. On the other hand, if such killing was the result of a violent and sudden impulse of passion on the part of the defendant engendered by the circumstances, it is manslaughter. "Where the facts in evidence and all reasonable deductions therefrom present two theories, one of guilt and the other consistent with innocence, the justice and humanity of the law compel the acceptance of the theory which is consistent with innocence." Davis v. State, 13 Ga. App. 142 (1) (75 S. E. 566); Rutland v. State, 46 Ga. App. 417, 422 (167 S. E. 705).
Florence Scroggs was indicted and tried in the Superior Court of Cobb County for the murder of Effie Adams. Upon her conviction of voluntary manslaughter, she urged a motion for a new trial on the general grounds only. The judgment of the trial court denying this motion is assigned as error. The evidence, construed in its light most favorable to the verdict, was substantially as follows: That, on Christmas Eve, 1954, the defendant called a taxi and instructed the driver to "go over about town"; that she instructed him where to turn; that part of the time they were on a dirt road; that they turned back to the four-lane highway, following another car, and the defendant left the taxi and paid the driver at a restaurant on the highway; that the car which had preceded them to this place contained the defendant's husband and the deceased woman, Effie Adams; that they drove up to the restaurant in the husband's car, parked in front, sitting side by side, and were there approximately 3 minutes when the defendant came up to the car and fired a number of bullets into it, one of which entered Effie Adams' spine, causing her death. The defendant then left and went home and, when the police arrived some time later, informed them she had done the killing.
The defendant put up a number of witnesses who testified as to her good character and as to the bad character of the deceased for lack of virtue and chastity. She further made a statement, from which it appeared that the deceased, immediately after being released from prison, began coming to the place she and her husband operated to drink beer; that she was always drinking; that she would attempt to hug and kiss defendant's husband, who at first repulsed her advances; that she continued sending people there to tell him to come to her; that the defendant warned her to leave her husband alone; that, 3 weeks before the night of the shooting, the defendant's husband announced he was going over to see Effie Adams and did so; that he returned drunk and muddy; that on that afternoon he went out ostensibly to a barber shop, but returned and said, "I had to carry Effie home"; that he then informed the defendant he was not going to take her to their family's home as planned for Christmas; that he was buying her no god damned groceries, she could starve to death; that he was going to get some beer and he and Effie were going off, and he then left. Several cases of beer were found in the automobile of the defendant's husband after the homicide.
Although a jury is not required to give any weight whatever to the defendant's statement, so much of the statement of this defendant is corroborated by undisputed evidence independent thereof as to require the reasonable and logical conclusion that sexual relations in violation of the marital rights of the defendant were planned between the defendant's husband and the victim.
If a wife kills another woman to prevent sexual relations between such other woman and her husband, the killing is justified under Code 26-1016 (Richardson v. State, 70 Ga. 725), provided the killing was apparently necessary to prevent the commission of such sexual act. Daniels v. State, 162 Ga. 366, 369 (4a) (133 S. E. 866). Also, in order to justify such a killing it is not necessary that the act be in progress, or that it is to be committed then and there. It is enough if it be apparent that the killing is necessary to prevent a planned act of sexual intercourse. Miller v. State, 9 Ga. App. 599 (71 S. E. 1021). On the other hand, if the killing, although apparently necessary to prevent adultery, was actually done by the defendant under a violent and sudden impulse of passion engendered by the circumstances and not to prevent the adultery, the offense is that of manslaughter. Mays v. State, 88 Ga. 399 (14 S. E. 560); Patterson v. State, 134 Ga. 264 (67 S. E. 816).
While the plan of the defendant's husband and the victim is obvious, the reason for the killing itself, being one of intent known only to the defendant, is more elusive. That she knew of the plan on the part of her husband and the victim is reasonably certain, but whether she killed to prevent its consummation or as a result of a violent and sudden impulse of passion engendered by reason of it does not appear. The evidence with at least equal force authorizes the conclusion that the killing was because of the apparent necessity to do so to prevent adultery with her husband, and therefore justified, and authorizes the conclusion that she acted as a result of sudden heat of passion, and therefore not justified.
The trial court erred in denying the motion for a new trial.
Judgment reversed. Gardner, P. J., and Carlisle, J., concur.