Winn v. State

135 S.E. 757, 36 Ga. App. 94, 1926 Ga. App. LEXIS 786

• Court: Court of Appeals of Georgia
• Decided: November 9, 1926
• Docket: 17544
• Status: Published

Opinion

Broyles, C. J.

The accused was tried for murder and convicted of voluntary manslaughter. His counsel in their brief abandon all assignments of error except upon the charge of the court on the law of voluntary manslaughter based upon the theory of mutual combat, counsel conceding that the evidence authorized the charge on'voluntary manslaughter based upon the theory of sudden heat of passion. It is well settled by repeated decisions of this court and the Supreme' Court that upon a trial for murder a charge upon the law of voluntary manslaughter based upon the theory of mutual combat is authorized if there be any evidence, however slight, or any portion of the defendant’s statement to the jury, authorizing a finding that at or immediately before the time of the homicide there was a mutual intention to fight on the part of both the accused and the deceased. Hnder the evidence adduced in this case, this court can not hold, as a matter of law, that the jury were not authorized so to find.

Judgment affirmed.

Luhe, J., concurs. Bloodworth, J., absent on account of illness.