1. Where upon the trial of one for murder the various theories contained in Code 26-1011, 26-1012, 26-1013, and 26-1014, on the subject of justification are, under the facts of the case, involved, the return by the jury of a verdict of voluntary manslaughter will not cure an erroneous charge on justification, where it appears that, had the court charged correctly, the defendant might have been exonerated by the jury.
2. The court's instructions on the subject of justification were calculated to confuse the jury and deprive the defendant of his defenses under Code 26-1011 and 26-1012.
3. Since the case must be remanded for a new trial, the other assignments of error are not considered, as the errors therein alleged are not likely to recur upon another trial of the case.
Under an indictment charging him with the murder of Jimmie Harris, James C. McKibben was tried and convicted of voluntary manslaughter, and sentenced to from fifteen to twenty years in the penitentiary. His motion for new trial, based on the usual general grounds and three special grounds, was overruled and he excepted.
The evidence for the State showed that the defendant shot and killed Jimmie Harris with a shotgun as Harris was ascending a stairway in a house in which both the defendant and Harris lived in separate rooms. Immediately after the homicide, the defendant was seen by another occupant of the house to be standing over the deceased. The defendant then left the house by way of the back door and was picked up by two colored men at a point about a mile and a half from the scene of the homicide. The defendant asked these two colored men to carry him to Covington, but they returned him to the scene of the homicide and delivered him to the police. Without any reference having been made to the homicide, the defendant stated to the two men who had picked him up, "I didn't kill that man." In his first statement to the arresting officers, the defendant denied that he had shot Harris; but when confronted by an insurance agent who was entering the house as the defendant had departed, the defendant admitted having shot Harris. On the morning following his arrest, the defendant related to the officers that, shortly before the shooting had taken place, he had been pursued to his room in the house where the shooting occurred by two boys, that he had gone up the stairs to his room, had got his gun, loaded it, and started from the room when it accidentally fired; that he returned to his room and reloaded the shotgun and went to the head of the stairs; and that, upon hearing someone ascending the stairs, he shot and killed Harris. The defendant introduced one witness who testified that, prior to the time of the shooting, he had seen two boys pursuing the defendant as he entered the back door of the house. The defendant's statement to the jury was as follows: "Juries, I will tell you how it was. That Saturday afternoon about, I will say it was betwixt 12--I got off at 12 o'clock. So I was caming [sic] home and so I come up on the right-hand side of McDonough Boulevard, and so I went in at Cooter's place over there, and I stayed around there a little while, and I come on out and when I crossed the street, that is when those two boys got after me. I was standing on the street and they walked up and got me between them, and he said something about cutting my head off. And so about a month before then I just had a group of boys jump on me and cut me up and break my nose. And I lit out home and he chased me home and I run upstairs and he run about three steps from the top and I fell and he reached at me just like that there, and so I went on my knees and went in the door, knocked the door open and went on in and got the gun. The gun was setting over behind the bed. I reached across the bed and got the gun and come back to the vanity drawer and got a shell and I went to put a shell in the gun and the gun went off, and so I turned around and went back to the door, went back and got another shell and come back to the door, and when I got back to the door, I heard something coming up and I thought, well, they are after me, like that, and it was dark in the hall and just as Uncle Jimmie stepped around I shot, and so I didn't know who he was until I come from about eighteen steps from the top down to the bottom, and I walked as close to him as from here to there before I knowed who he was, and after I found out it was Uncle Jimmie, I turned right around, it excited me so bad, I turned around and walked right out the back door and I went out to the street and come back to the house. And so before that happened that Saturday me and Uncle Jimmie was good friends, hadn't never had no words or nothing."
In special ground 1 (numbered 4), error is assigned upon the following portion of the court's charge to the jury, on the ground that the excerpt is erroneous and not sound as an abstract principle of law: "The law says further that, if, after persuasion, remonstrance, or other gentle measures used, a forcible attack on a person cannot be prevented, it shall be justifiable homicide to kill the person so attacking, but it must appear that the killing was absolutely necessary to prevent the attack, and that a serious personal injury was intended or might accrue to the person killing but for his taking the life of a fellow creature."
In special ground 2 (numbered 5), error is assigned upon the following excerpt from the court's charge: "Now, in this connection the court charges you that justifiable homicide is the killing of a human being in self-defense, or in defense of habitation, property, or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony on either; or against any person who manifestly intends and endeavors, in a riotous and tumultuous manner to enter the habitation of another for the purpose of assaulting or offering personal violence to any person that may be dwelling therein. A bare fear of any of those offenses, to prevent which the homicide is alleged to have been committed, shall not be sufficient to justify the killing. It must appear that the circumstances were sufficient to excite the fears of a reasonable man, and that the party killing really acted under the influence of those fears, and not in a spirit of revenge. The law says further that, if, after persuasion, remonstrance, or other gentle measures used, a forcible attack on a person cannot be prevented, it shall be justifiable homicide to kill the person attacking, but it must appear that the killing was absolutely necessary to prevent the attack, and that a serious personal injury was intended or might accrue to the person killing but for his taking the life of a fellow creature in his defense. The law says further that, if a person kill another in his own defense, it must appear that the danger was so urgent and pressing at the time of the killing that, in order to save his own life, the killing of the other was absolutely necessary; and it must appear that the person killed was the assailant, or that the slayer had really and in good faith endeavored to decline any further struggle before the mortal blow was given."
The objections urged against this excerpt from the charge are: (a) "That the court did qualify and limit the law of justifiable homicide contained in sections 26-1011 and 26-1012 of the Code of Georgia by charging without explanation the law of justifiable homicide under sec. 26-1013 and sec. 26-1014. (b) That the court erred in confusing the one theory of justifiable homicide with the other, and said charge as given did tend to perplex the jury in making appropriate application of the law to the facts. (c) That the court erred in not charging to the jury the law or theory of mutual combat in connection with the charge of justifiable homicide contained in sec. 26-1014 of the Code of Georgia, so that they might be able to intelligently apply that theory of justifiable homicide independent of the theory of justifiable homicide as contained in sections 26-1011 and 26-1012 of the Code of Georgia. (d) Because the court in his failure to charge the jury the rules under which the theories of justifiable homicide, as contained in sections 26-1013 and 26-1014, as applicable to the facts in the case at bar, did completely take away from the defendant the theory of justifiable defense as contained in sections 26-1011 and 25-1012 of the Code of Georgia."
In special ground 3 (numbered 6), error is assigned upon the following excerpt from the charge, upon the ground that the court erred in charging the law as to mutual combat for the reason that neither the evidence as a whole, nor a part thereof, nor the defendant's statement warranted such a charge: "The law says further that, if a person kill another in his own defense, it must appear that the danger was so urgent and pressing at the time of the killing that, in order to save his own life, the killing of the other was absolutely necessary; and it must appear that the person killed was the assailant, or that the slayer had really and in good faith endeavored to decline any further struggle before the mortal blow was given."
State, 71 Ga. App. 539 (31 S. E. 2d 248), there was no error in the trial court's refusal to grant the motion for new trial, based upon those allegedly erroneous charges on justification, for the reason that where, in a trial for murder, there are any errors in charging justification under Code 26-1011, 26-1012, or 26-1014, such errors are not reversible ones if the verdict returned is one for voluntary manslaughter; that is, as we understand the contention, any such errors are cured by the verdict of voluntary manslaughter. Properly limited and restricted, the principle here contended for might be applicable under the special facts of certain cases, but as a broad general principle applicable in all cases, such principle is not the law of this State as we understand it.
If under the facts of a case in which the defendant is charged with murder, a charge or charges on justification be authorized, and the court charges erroneously on the defense or defenses, no verdict less than one of acquittal could cure such error or errors.
If the evidence in a murder trial does not authorize a charge on the subject of justification, it is not, of course, erroneous to omit to charge on the subject. Miller v. State, 139 Ga. 716 (4) (78 S. E. 181); Benjamin v. State, 150 Ga. 78 (2) (102 S. E. 427); Turner v. State, 190 Ga. 316 (9 S. E. 2d 270).
If the issue of justification is raised by the defendant's statement alone, it is not error to omit to charge on the issue in the absence of a timely written request so to do. Baker v. State, 111 Ga. 141 (2) (36 S. E. 607); Turner v. State, supra.
If the issue of justification is not raised by the evidence or the defendant's statement, but, nevertheless, the court charges, either correctly or incorrectly, on justification, the defendant cannot complain, as the court under these circumstances has given or attempted to give the defendant the benefit of a defense to which he was not entitled. Smith v. State, 203 Ga. 317, 322 (46 S. E. 2d 583).
There is another class of cases, where the element of mutual combat is involved, in which it has been held that a failure to charge on such element or an erroneous charge on it is harmless where the verdict is for voluntary manslaughter. Knight v. State, 73 Ga. App. 556 (37 S. E. 2d 435); Lewis v. State, supra.
But that class of cases must not be confused with those involving mutual combat as applied to self-defense. As was said by MacIntyre, J., in his special concurrence in the Knight case, supra: "We should keep in mind the distinction between the law of mutual combat as applied to 'self-defense,' referred to in the Code, 26-1014, which would authorize a general verdict of not guilty and would acquit the defendant of murder or any lesser offense included in the indictment, and the law of mutual combat as applied to a reduction of the offense from murder to voluntary manslaughter." If, under the facts of a case, a charge on mutual combat as applied to self-defense (Code 26-1014) is required, and the court fails so to charge or charges erroneously, a verdict of voluntary manslaughter would not cure the error. Nor would such a verdict cure an erroneous charge, or a failure to charge, on the theories of justification contained in Code 26-1011, 26-1012, or 26-1013, where those theories were involved under the facts of a given case.
While the theory of justification (the defendant's sole defense) is raised alone by the defendant's statement to the jury, the court undertook to charge each of the section of the Code involving that theory--namely, Code 26-1011, 26-1012, 26-1013, and 26-1014; and since, under the defendant's statement, the jury was authorized to find that each of the theories of justification contained in those sections of the Code was applicable, and to find the defendant not guilty if applicable, it was incumbent upon the court, if it charged at all upon the theories of justification, to charge those principles of law correctly. As is illustrated by the portion of the court's charge quoted in the statement of fact from special ground 2, the charge as given was calculated, in the absence of any explanation of the distinctions existing between the various sections, to confuse the jury and deprive the defendant of his defenses under Code 26-1011 and 26-1012, by the manner in which the court charged Code 26-1013 and 26-1014. To do as was done by the court in this case--commingle the sections--has been adjudicated repeatedly by the Supreme Court to be reversible error. Franklin v. State, 146 Ga. 40 (90 S. E. 480); Boatright v. State, 162 Ga. 378 (4) (134 S. E. 91); Little v. State, 164 Ga. 509 (5) (139 S. E. 37); McCray v. State, 134 Ga. 416 (13) (68 S. E. 62); and the numerous citations in each of such cases. In each of those cases we might point out that the verdict was for murder, but the language of the Supreme Court, in admonishing the trial courts not to confuse or commingle the various sections on justifiable homicide in such fashion as to deprive the accused of his defense under either of them, is very forceful and for that reason they have been cited here, as we think the admonition there is just as applicable here even though the verdict here was for voluntary manslaughter, and that this is true is illustrated by the following cases:
In Powell v. State, 101 Ga. 9 (7) (29 S. E. 309), involving an indictment for murder but a conviction of voluntary manslaughter, the court, in an exhaustive and illuminating opinion, held that, where the trial court in its charge to the jury so commingled the two defenses of justification contained in Code 26-1011 and 26-1014 as to confuse the jury and cause the jury to believe that it was necessary for the defendant to show, under all circumstances, that it was necessary, to save his own life, to take that of the deceased, the defendant was entitled to a new trial.
In Pugh v. State, 114 Ga. 16 (39 S. E. 875), involving an indictment for murder but a conviction of voluntary manslaughter, it was again held that commingling the two theories of justification contained in Code 26-1011 and 26-1014 "deprived the defendant of the right to rely upon justification of the killing under the fears of a reasonable man."
In Roberts v. State, 114 Ga. 450 (40 S. E. 297), involving an indictment for murder but a conviction of voluntary manslaughter, it was held that the failure to give in charge the doctrine of reasonable fears as it related to the accused's defense of justification demanded the grant of a new trial.
In Dunn v. State, 16 Ga. App. 9 (6) (84 S. E. 488), involving an indictment for murder but a conviction of voluntary manslaughter, a new trial was granted for commingling the defenses of justification, and the court there said: "In cases where the defense of the accused rests only upon the contention that the homicide was committed under the fears of a reasonable man, the principle relative to urgent and pressing danger, embodied in section 73 [Code 26-1014] should not be given in charge."
In Ellis v. State, 21 Ga. App. 499 (94 S. E. 629), involving an indictment for murder but a conviction of voluntary manslaughter, each of the theories of justifiable homicide, embodied in Code 26-1011, 26-1012, and 26-1014, was given in charge to the jury, but without appropriate instructions explanatory of when the theory contained in Code 26-1014 would be applicable, and the court reversed the conviction of voluntary manslaughter for that error.
In White v. State, 24 Ga. App. 122 (100 S. E. 9), involving an indictment for murder but a conviction of voluntary manslaughter, the conviction was reversed for commingling the theories of justification embodied in Code 26-1011, 26-1012, and 26-1014.
In Farr v. State, 83 Ga. App. 855
(65 S. E. 2d 270), involving an indictment for murder but a conviction of voluntary manslaughter, the conviction was reversed for the same error present in the cases cited above and in the present case.
From the foregoing decisions--both those involving convictions of murder and those involving convictions of voluntary manslaughter--we apprehend that an erroneous charge or a failure to charge on the accused's defense or defenses of justifiable homicide is not cured by a verdict finding the accused guilty of some lesser grade of offense than murder. And, since the decisions of the Supreme Court are binding on this court without question, and the older decisions of this court are binding on this court until reversed or overruled by the Supreme Court or overruled by this court, we must adhere to the authority of those cases which we think state the correct principle of law. Anything to the contrary which may have been ruled by this court in Cribb v. State, supra, Davis v. State, supra, and Lewis v. State, supra, must yield to the older authorities.
2. The court's instructions on the subject of justifiable homicide in this case were calculated to confuse the jury and to deprive the defendant of his defenses under Code 26-1011 and 26-1012, and for that reason a new trial is mandatory and the trial court erred in overruling the motion for new trial.
3. Since the case must go back for a new trial, it is unnecessary to pass upon the other assignments of error, which are not likely to recur on such trial, but we might say in passing that the court should not confuse the defense of justifiable homicide contained in Code 26-1011 with that contained in Code 26-1013, as was done in that portion of the charge quoted in the statement of fact from special ground 1.
Judgment reversed. Townsend, J., concurs. Gardner, P. J., concurs in the judgment of reversal.