Mincey v. State

107 S.E. 546, 27 Ga. App. 4, 1921 Ga. App. LEXIS 646

• Court: Court of Appeals of Georgia
• Decided: May 11, 1921
• Docket: 12132
• Status: Published

Opinion

Broyles, C. J.

The 2d headnote alone needs elaboration. The defendant was on trial for murder. A witness for the State testified that shortly before the homicide the defendant and the deceased were “ fussing and rowing ” in the house of the deceased, and that the deceased was loudly cursing the defendant, that the defendant left the house, and that the deceased followed him out and said he was going to give the defendant hell, and the defendant in reply said, “ Don’t you pome on me, uncle Bill,” and the deceased then threw his hand to his hip-pocket and made a step towards the defendant, whereupon the defendant shot and killed him. The defendant, in his statement to the jury, said that shortly prior to the killing he and the deceased had some words in the latter’s house, and that the deceased called him a liar, that he (the defendant) walked out of the house, and that the deceased followed him to the door and called him a “ God damn son of a bitch,” and said he was going to give him trouble “ right' now,” and threw his hand back in his hip-pocket on his pistol, and that he was expecting to be shot by the deceased, and that he (the defendant) fired and the deceased fell. The evidence disclosed that almost immediately after the shooting the deceased was searched and no pistol was found upon his person.

It is well settled that the jury in a criminal case can believe a part of the defendant’s statement and reject other parts. They can believe a part of the statement which shows that the killing was done without malice, and reject,other parts that show it was justifiable. They can, if they see fit, combine portions of the evidence and portions of the statement, in determining whether the homicide was murder or manslaughter. In this case the jury were authorized to reject that part of the defendant’s statement which showed that the deceased threw his hand upon his pistol, and to believe other portions of the statement which showed that the deceased, without provocation, had used vile and opprobrious language to the defendant and had attempted to assault him, and to find that this language and attempted assault had so aroused the defendant’s passion that the killing, although not justifiable was without malice. If there is anything in the evidence or the defendant’s statement which would authorize the jury to find that a sudden quarrel arose preceding the homicide, that an assault was attempted by the deceased upon the defendant, and that the killing was caused by a sudden heat of passion, and without malice, it is not error for the court to instruct the jury upon the law of voluntary manslaughter. Clark v. State, 6 Ga. App. 741, 743 (65 S. E. 694).

Where the evidence, or the defendant’s statement, or portions of the evidence and portions of the statement combined, raise a doubt, however slight, as to whether the homicide was murder or voluntary manslaughter, it is not error for the court to instruct the jury upon the law of voluntary manslaughter. Jackson v. State, 76 Ga. 473; Cain v. State, 7 Ga. App. 24 (65 S. E. 1069); Tanner v. State, 21 Ga. App. 189 (94 S. E. 67), and citations; Reeves v. State, 22 Ga. App. 628 (97 S E. 115), and citations.

It follows from what has been said that the court did not err in instructing the jury upon the law of voluntary manslaughter, and the excerpts from the charge upon this subject were not erroneous for any reason assigned.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.