1. It was not error, when charging the jury on voluntary manslaughter, to fail to charge in connection therewith that words, threats, or menaces may justify a killing if the circumstances are such as to arouse the fears of a reasonable man that his life is in danger, or that, a felony is about to be committed upon him.
2. A charge which instructed the jury that the defendant would not be justified by a fear that the deceased might kill him at some indefinite time in the future was not error.
3. The evidence and the defendant's statement did not require a charge on the principle contained in Code 26-1017.
Colvin W. Stevens was indicted for the murder of John J. Long, and was found guilty without a recommendation of mercy. His motion for new trial as amended was denied and the exception is to that judgment.
A summary of the evidence is as follows: Lonnie J. Dart, a witness for the State, testified: On August 18, before the homicide on August 20, he was at the home of the defendant in Jesup, waiting outside in his truck. He heard the defendant and his wife arguing, and they later came out and asked him to take them to Savannah. They had their one-week-old baby with them. On the way they again argued, and the defendant slapped his wife on the face. The defendant left the truck at Ludowici and the witness took Mrs. Stevens to the home of the deceased, who was her brother.
Guyton Beasley testified for the State: During the afternoon of August 20 he was at the home of the deceased. He was working on a car with Gene Driggers, who lived there, and was in front of the house when he heard something on the porch. He looked around and saw the defendant and the deceased fighting. The first time he saw them the deceased was on top of the defendant, hitting him. The wife of the deceased and the wife of the defendant asked him to stop them, and he pulled the deceased off of the defendant, but they started fighting again. The witness heard the deceased tell the defendant, "Don't put your foot in my place again, if you do I am going to try to beat you to death next time." The defendant's cheek and mouth were bleeding, when he left.
Eugene Driggers gave a similar account of the fight between the defendant and the deceased, except that he stated that he heard the deceased tell the defendant not to come back to his place, but did not hear him threaten the defendant.
H. E. Lacy, supervisor of the Ludowici Lumber Company, Mrs. Marie Alexander, bookkeeper, and Toolie Cox, mechanic each testified that, at approximately 5 o'clock p.m. on August 20, they were in the office of the lumber company. The defendant came there, inquiring if the deceased worked there. He was told that the deceased did work there, but he was off that afternoon because it had rained. The defendant stated that he "was looking for John Long," that he "was going to kill John Long or John Long was going to kill him." The defendant inquired where the deceased lived, and they told him.
Cardell Jones testified: He lived in Jesup. The defendant came to his home between 8 and 9 o'clock on the evening of the homicide and wanted some shells. The defendant told him, "that his brother-in-law had beat him up and he wanted to protect himself . . . that his brother-in-law had threatened to kill him." The witness gave him a handful of shells, but the defendant said they would not fit the gun he had, and asked that the witness let him have a gun. The witness did not let him have a gun. The defendant had been drinking, but the witness could not tell to what extent he was under the influence of alcohol.
George Moxley testified: He lived at Doctortown. On the night of the homicide the defendant came to his home with Willie Hambrick. They were traveling in a truck. The time was approximately 9 o'clock. The defendant asked to borrow the gun of the witness to go rabbit hunting. The witness loaned the defendant his twelve-guage single-barrel gun. (The witness identified the gun offered in evidence as his gun.) About two hours later the defendant returned with the gun, and stated to the witness that he had killed the deceased.
Lillie Rose Long, the wife of the deceased, testified: On August 20 she was living in Ludowici, on the property of the Ludowici Lumber Company, with her husband and their three children. Eugene Driggers lived at their home, and the sister of the deceased (the defendant's wife) had come there on the Tuesday before the homicide on Thursday, and was staying there, with her small child and baby. On Thursday afternoon, at about 4:30 or 5 o'clock, the defendant cane to their home. The first she knew about any difficulty between the defendant and the deceased was when she heard a disturbance and looked out on the porch. She saw the deceased sitting astride the defendant and slapping him in the face. The fight lasted a short time, and the deceased told the defendant to leave and not to come back. The defendant came back to their home between 10:30 and 11 o'clock that night. He was in a truck, and Willie Hambrick was with him. "When he stopped there he [the defendant] called John [the deceased]. When John got on the porch he said he come to see about sending Jackie [the defendant's wife] some money to buy the baby some milk and John told him he could send it but he better not bring it and Hambrick called John. Hambrick told John to come out there that he wanted to talk about being good friends. John walked out and about the time he got to the truck Hambrick asked for a cigarette and John was still talking to Colvin. John told Colvin not to ever go up to the office again threatening and Colvin said he didn't do it and raised his voice and John told him not to raise his voice on his property where he was paying rent and Colvin cussed and got out and said let me see what you are going to do about it. Then he shot John. With reference to the location of the building and the truck, John was standing on one side of the truck and Colvin on the other . . . He shot him across the hood. I would say he was about six feet from him which he shot him. John said darling bring my gun he has got his and then he fell, he shot him there. He shot him with a shotgun. Whether or not I saw the shotgun, l saw it when he throwed it up on him . . . He got out of the truck, that is when John told me to bring his gun, Colvin had his gun. I didn't get the gun, I didn't have time. I never did get it, I didn't make any effort to get it, I didn't even start towards it . . . I had got up with my husband and walked out on the porch. I was standing on the porch when John went out to the truck. He was shot right after he told me to bring his gun that they had theirs . . . When Colvin got out and said let's see what you are going to do about it and John said bring my gun they have got theirs too, and John fell as he said that . . . I didn't have the remotest chance of getting the gun after my husband made that statement I didn't leave the post until he shot John."
Lou Ella Scott testified: She lived next door to the deceased. She saw the fight between the defendant and the deceased. It did not last long. After the fight was over the defendant left. She heard the deceased tell him "to go on off and not come back any more." That was about 5 o clock Thursday afternoon. The defendant came back that night in a truck. "When Mr. Stevens got there he called Mr. Long . . . and Mr. Long answered him and he said come out here I want to talk to you. sir. Long told him he was not coming out, he said there wasn't anything he wanted to talk to him about . . . Mr. Long told him that he had told him that afternoon not to come back there any more and that he didn't want to have any more trouble with him, that he had been around to the mill that afternoon and had threatened him and Mr. Stevens didn't say where he did or not, I didn't hear him if he did and then Mr. Stevens told John that he would send some money to get the baby some milk and Mr. Long told him that he could send it but he couldn't come bring it . . . After Mr. Long made that statement to him this other fellow called him and told him to come out there that he wanted to talk to him . . . After this other fellow in the truck called him he started out and his wife told him not to go and he said he was going that he wasn't afraid of them. He went on out there, after the other fellow in the truck had called him. Colvin was standing on the side of the truck that the steering wheel is on . . . At that time I didn't see Colvin with any weapon on the outside of the truck. I saw the weapon when he got ready to shoot Mr. Long . . . After Mr. Long got out there there wasn't very much more said . . . and Mr. Stevens cursed and Mr. Long told him not to be cursing like that and not to be raising his horse [voice?]. I don't remember what Mr. Stevens said, but anyway Mr. Long told him that he couldn't be cussing there around his place. Mr. Long then told him that he was going to keep on aggravating him and messing around there until he was going to give him another whipping and then he was going to send him to Reidsville and at that time Mr. Stevens picked up the gun and shot him . . . When Mr. Long seen that Mr. Stevens had the gun he told his wife to hand his gun that he had his. Mr. Long didn't get his gun. He didn't have time to get his gun before he was shot. Stevens got the gun from the side of the truck where it was propped up there on the left side of the truck where he was standing . . . Mr. Stevens stepped over toward the front of the truck when he started to shoot Mr. Long . . . I would say he took about two steps . . . the only statement Mr. Long made is the one I just told you about telling his wife to get his gun that he had his. As to how many seconds passed before he was shot
by the defendant, it was almost instantly . . . During all of this I was at my window on the porch . . . I would say l was fifteen or twenty yards from Mr. Stevens, something like that. Some little distance but I could see it clearly from the car lights and the moon . . . Mr. Long didn't call his wife until he saw Mr. Stevens had his gun. Mr. Stevens didn't have the gun in his hand until he picked it up. I certainly did see him pick it up . . . He picked the gun up from the side of the truck, propped up."
Jack Curry, night Chief of the Police Department in Jesup, testified that the defendant surrendered to him on the night of August 20, stating that he had shot a man.
A. J. Kelly, Chief of Police of Ludowici and Coroner of Long County, testified that he investigated the death of John J. Long, and that the cause of his death was a shotgun wound in his neck.
W. M. Jones, Sheriff of Long County, testified: he had a conversation with the defendant in the Jesup jail about 2:30 o'clock a.m. On August 21. "As to what the conversation was, I asked him what happened and he said he had . . . shot John Long and I asked him if he knew he killed him and he said I reckon I did, I shot him. I asked him why he did it and he said well it was me or him one and I just beat him to it. And I said you are not sorry of it and he said no. He said he wasn't sorry of it a damn bit . . . He [said] that they had the fight that afternoon and he came to Jesup and went back to Ludowici and shot him. He said he shot him with a shotgun. I later found the shotgun that he shot John Long with. That is the shotgun that was identified to me as the one he shot him with. I found the empty shell hull on the porch of Mr. George Moxley."
The defendant introduced a number of witnesses, who stated that the deceased had made threatening statements against the defendant. Mrs. P. R. Stevens, mother of the defendant, stated that the deceased came to her home on Wednesday night before the homicide on Thursday, inquired where the defendant was, and said, "Well if I find him Jackie will never have no more use of him." She stated that she communicated this statement to the defendant. P. R. Stevens, father of the defendant, testified that on the night before the homicide the deceased came to their home, inquired about the defendant, and stated: "If I find him he won't be there." He communicated this statement to the defendant.
Ed White testified: he saw the deceased on Wednesday. The deceased asked the witness if he had seen the defendant and the witness replied that he had not. The deceased said: "Well if I find him you won't see him because I am going to break his damn neck." The witness did not communicate this statement to the defendant or any member of his family.
Robert Strickland testified: He saw the deceased on Wednesday night at a grocery store. The deceased asked him if he knew where the defendant was, and he told him he had not seen the defendant. The deceased said: "You tell him when I find him I am going to beat him to death." John Hodge testified that he was with Robert Strickland and heard the conversation related by Strickland.
The State recalled Lillie Rose Long in rebuttal. She stated that her husband was not away from their home at any time Wednesday afternoon after he quit work.
The defendant's statement was in part as follows: "Well, John has been nagging me and threatening me ever since me and my wife have been married, trying to tell me how to run my business . . . When my wife came out of the hospital, the baby was born on the 13th . . . she got John's kid to stay with her. I was driving a cab at that time. So about the fifth day I believe it was I quit driving. I went and bought me a pint of liquor and went home. I drank a little bit of it and my wife started raising sand, so I lay down on the bed and went to sleep and when I woke up she was gone. I walked over to the cab stand and one of the drivers told me he carried her to John's . . . I went to John's and brought her back home and she was crying, told me John would beat me and said you know John, she said I expect you better carry me to John's. Well, about that time Jack Dart come up . . . He helped me put the things in the truck and we started off and I asked him about carrying me to Savannah. I asked my wife if she wanted to go with me and she said no, she wanted to go back to John's. So when we got to Ludowici I told her I wasn't going up to his house, that she could go. He mentioned while ago that I slapped her and cussed her, I didn't slap her at all, I knew she was sick. So he carried her on around to John's . . . he came back out and picked me up . . . We got to Hinesville, he got to checking on his gas and we didn't have no money and I told him we better go back then so he brought me back to my mother's house at Doctortown. When I went in my mama begin to tell me about John had been looking for me. I didn't pay too much attention to it, so the next morning there was still some of them and then my sister she got ahold of it and first one and another one telling me. I told mama I was going to catch me a ride on over to Savannah and get me a job, . . . I caught a ride to Ludowici and . . . a ride to Hinesville. . . . It got to looking rainy and getting late and I couldn't catch t ride so I decided I better come on back and go home. I caught a ride with some fellow . . . he had a half pint and asked me if I wanted a drink and I told him yes. I took a drink and just before we got to Ludowici I took another one. So he come on in to Ludowici . . . and I got off and I went around that dirt road toward John's. I wanted to go by there and see my wife and kids and give her what little change I had to get some milk for the baby . . . I walked up there and set down on the porch, well John he got up and come around where I was at and when I raised up to straighten up on the porch he let me have it and he beat me . . . I don't know he ever got off but when I got free I walked off and I walked on down the road, and everything turned black and I turned dizzy and I lost my memory right there, . . . and the next thing I remember I met this car and . . . we turned off somewhere and somebody asked me did I want to take out a warrant for him and I said I ain't got no money to take out no warrant with and they said it won't cost you nothing, so whoever it was I don't know, began to fix it up and I left there . . . So we started whoever I was with and we got just beyond the bus station going toward Jesup and John stopped me again, . . . so I stepped out of the car and he said you took out a warrant for me didn't you and I said well no, not exactly, well I reckon I did too. he said told you I was going to kill you and he said now I mean I am going to kill you. I got back in whatever I was in and left and I don't remember where I got off at, . . . I . . . went over to my brother-in-law's, Willie Hambrick. I asked him
So I just stepped out with one foot on the ground and one foot on the running board and I lent back against the door and I stuck the gun in the door where the glass rolls up in the door or between the cab and the door, one of the two places, didn't even have it to my shoulder, just stuck it in there and fired, just time I fired I got back in the truck . . . So I backed out and left just as quick as I could leave . . . I wanted to tell the truth about it because I was man enough to do it or if he had killed me it might have been shortly but he would have killed me. A long time ago he said he was going to kill me about a year ago, been nagging me all the time as to what I better do and what I better not do and what I had better not do to Jackie, she was jealous and I didn't listen to what he said, from John. And I reckon that's about it."
1. In the first amended ground of the motion for new trial it is contended that the court erred in charging the jury, 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," without calling the attention of the jury to the fact that words, threats, or menaces may justify a killing if the circumstances are such as to arouse the fears of a reasonable man that his life is in danger, or that a felony is about to be committed upon him.
The excerpt from the charge complained of was given in connection with an instruction on voluntary manslaughter. In another portion of the charge the court gave instructions on justifiable homicide under the fears of a reasonable man. No request was made for an instruction that words, threats, and menaces could be considered in determining whether the defendant acted under the fears of a reasonable man.
Even if it be assumed that the evidence or the defendant's statement raised an issue as to justifiable homicide, no error is shown in this ground. Price v. State, 137 Ga. 71 (72 S. E. 908); Futch v. State, 137 Ga. 75 (72 S. E. 911); Adkins v. State, 137 Ga. 81 (72 S. E. 897); Deal v. State, 145 Ga. 33 (88 S. E. 573); Vernon v. State, 146 Ga. 709, 713 (92 S. E. 76); Rawls v. State, 160 Ga. 605 (2) (128 S. E. 747); Hartley v. State, 168 Ga. 296 (147 S. E. 504); Gossitt v. State, 182 Ga. 535, 538 (4) (186 S. E. 417); Booker v. State, 183 Ga. 822 (4) (190 S. E. 356); Walker v. State, 186 Ga. 882, 884 (199 S. E. 231); Tye v. State, 198 Ga. 262, 264 (31 S. E. 2d 471).
2. In ground 2 it is asserted that the court erred in charging the jury that the defendant "would not have the right to kill him . . . upon the theory that Mr. Long might kill him at some future time." It is insisted that this was not a correct statement of the law, that it unduly restricted the jury in a consideration of the defendant's contention that he was acting under the fears of a reasonable man that his life was in danger, and was inconsistent with a correct charge previously given on the subject of reasonable fears, and would therefore be confusing and misleading to the jury.
This statement in the charge was followed immediately with the instruction: "On that question, gentlemen of the jury, you are confined to a consideration of the facts as they then existed at the time of the killing to see whether or not he acted under the fears of a reasonable man and in the light of all of the evidence including the question of the alleged threats made by the deceased."
The jury should not have been confused by the statement objected to in this ground. It was plain that the court meant that, while the defendant would be justified if he killed the deceased under the fears of a reasonable man that his life was in immediate danger, or that a felony was about to be committed on him, he would not be justified in killing the deceased because of a fear that at some indefinite time in the future the deceased might kill him.
3. In ground 3 it is asserted that it was error, requiring the grant of a new trial, for the court to. fail to charge the principle of law embodied in Code 26-1017, as follows: "The homicide appearing to be justifiable, the person indicted shall, upon the trial, be fully acquitted and discharged." While the court instructed the jury on the forms of verdict which they might render on the murder charge, or in the event they found the defendant guilty of voluntary manslaughter, and instructed them as to their verdict should they have a reasonable doubt of the
658 STEVENS v. STATE.
defendant's guilt of either offense, they were not instructed that, if they found the defendant justified, they should acquit him. It is contended that this omission had the effect of withdrawing from the consideration of the jury the defendant's contention of justifiable homicide as a separate, substantive, and affirmative defense, and gave the defendant the benefit of his theory of justifiable homicide only as a negative defense.
A careful consideration of the evidence and the defendant's statement in the present case convinces us that justifiable homicide was not in issue. While there was evidence showing that a few hours before the homicide, the deceased and the defendant had engaged in a fight, in which the deceased was apparently the aggressor, this incident was finished by the defendant leaving the home of the deceased, where the fight had occurred. The trial judge charged the jury on voluntary manslaughter and instructed them that it was their duty to determine when there had been sufficient cooling time between the fight and the homicide "for the voice of reason and humanity to be heard." It appears from the evidence and the defendant's statement that, after the defendant left the home of the deceased, he made considerable effort to arm himself and then returned to the home of the deceased. In his statement the defendant claimed that he thought the deceased would be in jail because of a warrant he had sworn out against the deceased, and he only wanted to see his wife and children, but this contention is hardly reconcilable with his efforts to provide himself with a gun. Under all the evidence and the defendant's statement, the deceased was unarmed and offered no violence to the defendant at the time the defendant shot him.
The trial judge gave the defendant the benefit of a charge on justifiable homicide, which he was not required to do under the evidence and the defendant's statement, and his failure to charge the principle contained in Code 26-1017 was not error.