Huff v. State

147 S.E.2d 840, 113 Ga. App. 257, 1966 Ga. App. LEXIS 1033
CourtCourt of Appeals of Georgia
DecidedFebruary 3, 1966
Docket41627
StatusPublished
Cited by13 cases

This text of 147 S.E.2d 840 (Huff v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Huff v. State, 147 S.E.2d 840, 113 Ga. App. 257, 1966 Ga. App. LEXIS 1033 (Ga. Ct. App. 1966).

Opinions

Eberharbt, Judge.

It is contended that the court erred in failing to charge on the defendant’s right of defense of her habitation, in the language of Code § 26-1013: “If, after persuasion, remonstrance or other gentle measures used, a forcible attack and invasion on the property or habitation of another cannot be prevented, it shall be justifiable homicide to kill the person so forcibly attacking and invading the property or habitation of another; but it must appear that such killing was absolutely necessary to prevent such attack and invasion, and that a serious injury was intended, or might accrue to the person, property, or family of the person killing.”

The State urges that the defendant’s habitation consisted of the whole house—not just her bedroom, and that since the deceased was a guest in the house and already in it when the trouble arose this principle can not be applicable, relying upon Pyle v. State, 187 Ga. 156 (2) (200 SE 667) and White v. State, 2 Ga. App. 412 (1b) (58 SE 686). We do not agree. As the facts indicate, the defendant was operating a boarding house. Some of the rooms were rented out to the boarders, including one to the deceased. But she reserved to herself and for the use of herself and child the front bedroom. The rooms rented to others became the habitation of those to whom they were rented. Newcomb Hotel Co. v. Corbett, 27 Ga. App. 365 (1) (108 SE [261]*261309); Byfield v. Candler, 33 Ga. App. 275 (7) (125 SE 905). The deceased may have been a guest as to the living room, but that relationship did not extend to the defendant’s bedroom. He may have had the “run of the house” as to those portions in which all guests or boarders were permitted—the living room, dining room, kitchen, hall and perhaps the bathroom. His own bedroom was his habitation, and no other guest of the house was entitled to go there without his invitation. And so it was with the defendant’s bedroom." Cf. Code § 26-2401; Jones v. State, 75 Ga. 825 (2); Trice v. State, 116 Ga. 602 (42 SE 1008); Bacon v. State, 85 Ga. App. 630 (1) (70 SE2d 54), reversed on other grounds in 209 Ga. 261 (71 SE2d 615).

But there are other reasons why failure to charge on this matter was not error. The statute applies only “after persuasion, remonstrance, or other gentle measures used” unless the circumstances are such that there is no time or opportunity for doing so. Palmour v. State, 116 Ga. 269 (42 SE 512); Pyle v. State, 187 Ga. 156, 1591, supra. The deceased was not armed. “After the verdict, the testimony is construed in its most favorable light to the prevailing party, which in this case is the State, for every presumption and inference is in favor of the verdict.” Wren v. State, 57 Ga. App. 641, 644 (196 SE 146). The deceased followed the defendant to the door of her bedroom and when she tried to lock it, pushed his way on in, after having asked her to wait so that he might talk with her. After getting into the room, and before the deceased closed the door by kicking it to, defendant got a gun from the dresser drawer, placed it in her pocket and kept her hand on it. She asked the deceased to leave her alone and not start any trouble, whereupon he struck her in the face and she shot him in the leg. He struck her two or three more times, and she shot him again, this time fatally.

Can it be said that the defendant sought either by persuasion, remonstrance or other gentle measures to keep the deceased from entering her bedroom, or that she used these in any effort to get him to leave after he entered? She did state that she asked him to leave her alone and not to start trouble, but that is quite another thing, going to the matter of self-defense. The circum[262]*262stances do not appear to have been such that the defendant could not have tried to use persuasion and the like to prevent the deceased from entering. She knew that he was following her to the room. Once in the room she moved hastily to get the gun from the dresser drawer and place it in her pocket.

But the question need not be answered. Even if it be concluded that the facts do raise the matter of defense of habitation, the defendant’s main defense was self-defense on which the court charged fully. That was her contention all through the trial, and it is conceded in her brief here. There was no request that the defense of habitation in the language of Code § 26-1013 be charged. “Where in a criminal case two distinct and independent theories of defense are raised by the prisoner’s statement, each having its foundation solely in that statement, it is not error, in the absence of a proper request, for the trial judge to wholly fail to charge as to one of these theories, although he may have charged the law applicable to the other.” Jackson v. State, 192 Ga. 373, 374 (15 SE2d 484). Accord: Smith v. State, 117 Ga. 259 (43 SE 703); Prince v. State, 180 Ga. 796 (5) (180 SE 768); Bolton v. State, 107 Ga. App. 883 (2) (131 SE2d 862). Neither self-defense nor defense of habitation could be found in this record unless in the defendant’s statement. Nor would it matter whether the statement was made from the stand or made out of court.

Moreover, there is the unbroken line of cases, pointed out in the special concurrence, holding that it is not error for the court to fail to charge on any theory of defense raised solely by the defendant’s statement, absent a timely and proper request. Whisman v. State, 221 Ga. 460 (8) (145 SE2d 499); Brawner v. State, 221 Ga. 680 (3) (146 SE2d 737).

It is contended that the charge of Code § 26-1011, though correct in itself, was incomplete and erroneous because not supplemented by a charge of Code § 26-1013. “Where an extract from the charge of the court is in itself correct and proper, it is not subject to exception because of failure to give a certain additional instruction.” Grier v. State, 43 Ga. App. 348 (5) (158 SE 634). Accord: Jones v. State, 197 Ga. 604 (5) (30 SE2d 192); Whiting v. State, 108 Ga. App. 374 (2) (133 SE2d 50). This contention is without merit.

[263]*263Defendant assigns error upon the refusal of the court to give a timely written request defining habitation: “In this respect, ‘habitation’ need not be defined as the entire dwelling house of that person, but can be interpreted as being a part thereof that is peculiarly private to the defendant as opposed to other inmates thereof, either by agreement or by course of conduct, and to which other inmates thereof have no special right of use or occupancy by reason of the tenancy of the dwelling house in general.”

“ ‘A request to charge should in itself be correct, and even perfect; otherwise the refusal to give it will not be cause for a new trial. Etheridge v. Hobbs, 77 Ga. 531 (3 SE 251).’ Macon, Dublin &. R. Co. v. Joyner, 129 Ga. 683 (5), 688 (59 SE 902). It must be legal, apt, and precisely adjusted to some principle involved in the case, and be authorized by the evidence. Lewis v. State, 196 Ga. 755 (3), 760 (27 SE2d 659); Downs v. Powell, 215 Ga. 62 (108 SE2d 715). A request to charge is not perfect in form when an inference is required to make it correct, and there is no error in refusing to give such a request. Norris v. State, 184 Ga. 397 (3) (191 SE 375).

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Huff v. State
147 S.E.2d 840 (Court of Appeals of Georgia, 1966)

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Bluebook (online)
147 S.E.2d 840, 113 Ga. App. 257, 1966 Ga. App. LEXIS 1033, Counsel Stack Legal Research, https://law.counselstack.com/opinion/huff-v-state-gactapp-1966.