
    Jackson v. The State.
   Beck, P. J.

Provocation by words, threats, menaces, or contemptuous gestures will not reduce a killing from the crime of murder to manslaughter. Penal Code (1910), § 65. In all cases of voluntary manslaughter there must be both provocation as the statute provides and passion. The provocation must come from an assault or an attempt to commit a serious, personal injury, or from circumstances which are equivalent to an assault or an attempt to commit a serious personal injury. Mize v. State, 135 Ga. 291, 297 (69 S. E. 173). Under these established principles of law, the court did not err in failing to charge the law of manslaughter contained in section 64 of the Penal Code, nor the law of voluntary manslaughter’ contained in section 65. The evidence for the State showed the crime committed by the defendant to be murder, and there is no evidence to reduce the homicide from murder to manslaughter. And if under defendant’s statement he was guilty of manslaughter, there was no request in writing to charge upon that subject, and the mere failure to charge upon a theory of the case presented alone by the defendant’s statement is not error.

No. 4861.

June 22, 1925.

Murder. Before Judge E. D. Thomas. Rabun superior court. March 30, 1925.

'Frank-Jackson was indicted, tried, and convicted of the offense of murder. lie made a motion for a new trial, which was overruled, and he excepted. Upon the trial of the case George Harris, a witness for the State, testified as follows: “I was present .at the time of the killing- of Holt Allen in Rabun County on the 21st of February, 1925, last Saturday night. Frank Jackson, the defendant here, killed him with a butcher-knife. Holt Allen was serving a sentence in the chain-gang at the time, and so was Frank Jackson. Saturday morning, when we went out to work, me and Frank Jackson worked pretty close together, and he told — asked me— says, ‘Haven’t I always treated you nice?’ and I told him yes. Then the water-boy come down there; and he asked him, ‘Haven’t I always treated you nice?’ asked him the same thing, and the water-boy says yes, and then he says, ‘I am tired of taking foolishness,’ and he said-that Holt Allen had been picking at him ever since he had been there, and that after he got a hearing from his lawyer and he didn’t seem to do nothing for him, that he was going to kill him. That is Holt Allen. This was on Saturday morning, the same day of the killing, .which was that night; and I says, ‘Well, that haven’t got anything to do with your business,’ and then it was twelve o’clock, and we knocked off from work then, and Frank Jackson and Holt Allen was sitting at the heater, and I come -in from out at the branch, where I had been washing, and Frank and Holt Allen was arguing, and I heard him tell Jackson —says, ‘You going on and writing notes to Captain and telling lies on me,’ and says, ‘I am going to drop something on your head.’ Jackson didn’t have anything to say to him, only says, ‘Did you hear me tell anything on you?’ He told him no, and Holt says, ‘I am just telling you so you wouldn’t do it,’ and by that time I walked back out of the tent and went out to get. some water to take a bath. When I come back, they was through arguing, and we come on in the tent, and Jackson was up in the white end of the tent, before they rang the steel for eight o’clock, and just as the man hit the steel, as near as I can estimate, about three minutes, he walked down the bunks and 'stood there something like two minutes, and shortly after the man grabbed his lantern to search the chains, while Jackson was sitting on the foot of his bunk watching across at Holt Allen and looking at him across the heater, kinder. Well, they goes ahead and the night man searches the chains. The chains we sleep on is a building chain. That chain has got a ring in it, and a big chain goes up and down the aisle, and we is chained to that cot at night. Holt Allen was chained that night, but Frank Jackson was not; he was a trusty. Well, Jackson gets up after the night man passes him — seemed to be waiting to catch his eye; and when he gets about five or six bunks from him, and takes his lantern to search the last man, why, Jackson walks in front of the heater and steps across the aisleway, and lifts his foot over the chain, and I seed him when he moves the knife from his bosom. He first went back to the bunk, is what caught my eye, and he stuck the knife under the apron of his overalls. He got the knife»from the side of the bed and steps across the chain, and just as he gets his foot over he goes on Holt Allen with a pitch. Holt Allen was lying down reading, fiat of his back, and was reading the Chicago Independent. Jackson stabs him through the paper, and says, ‘I told you about fooling with me,’ and walks out between the bunks to run out the aisle, and kinder pulled his knife out of him, and then he went out the aisleway, and Frank Dorsey halloed, ‘Look'at Frank Jackson; he done stabbed Allen,’ and the night man says, ‘Where is he?’ and he says, ‘He is gone out the tent,’ and the night man went and called him back in. Jackson had done stepped outside the tent, and in about two- or three minutes after he went out they come back in the tent, him and the night watchman, Mr. Addis; the night man brought him back, but he had done stepped out and throwed his knife away. I saw the knife. It was a butcher-knife, and that is it. That is the Chicago Independent, the newspaper that Holt Allen was reading at the time he was stabbed. That hole in the paper was made from the knife at the time Holt Allen was stabbed. He had the paper in front of his fa,ee, and could not see Frank Jackson. At the time Holt Allen was stabbed, Jackson drove through the paper with all the force he had, I guess. He stabbed Holt just above his left titty — above the heart. He only lived about fifteen minutes. When Jackson stabbed him, Holt Allen jumped straight up off his bunk and fell on his face on the other bunk across from him, and says, 'Lord, have mercy, send and get Dr. Dover quick.’ Besides working in the camp, Holt worked on the road. Friday night I heard Holt Allen tell Frank Jackson that he was the low-downdest man in the State of Georgia; said that he tell lies on people and get them sent to the chain-gang for nothing. They didn’t seem to be mad, even when they were having an argument on Saturday afternoon, and Holt told Jackson that if he did write anything to the Captain against him he would drop something on his head. He says, ‘I am just telling you before I get mad.’ Frank Jackson had done nothing to him, but Holt Allen was mad at Frank Jackson, telling him he was the low-downdest nigger in the State and would send people to the chain-gang for nothing. This was on Friday night before he said he would drop something on his head. He did not say what he would drop. Frank Jackson did not do anything to Holt Allen then. I saw the knife in front of the stove or heater before he got it concealed. It was about six feet across the space there. I did not hear Holt Allen say anything to Frank then. The stove and stove-wood was closer to Jackson than to Allen. It was where Allen could reach it. That night he did not open his mouth to him. On Friday night Holt Allen was talking to the other boys, and Frank got into the conversation. He did not say anything to Frank Jackson, except that he was the meanest nigger in Georgia, and the man hit the steel before he got through. I heard no conversation on Saturday night.”

Judgment affirmed.

All the Justices concur, except Gilbert, J., absent for providential cause, and

Russell, C. J., and Atkinson, J.,

who dissent, basing their decision on the principles ruled in Paschal v. State, 125 Ga. 279 (54 S. E. 172), and Dorsey v. State, 126 Ga. 633 (55 S. E. 479).

The evidence of the witness Harris was corroborated in the essential particulars by other witnesses introduced by the State. The defendant made a statement in which, after reference to certain difficulties and altercations which he had had with the decedent, Holt Allen, he said: “We was sitting there [the place of confinement where the convicts were chained], and this nigger, Holt Allen, jumps up and says that somebody was talking to the guards, and he didn’t lay it on nobody but me, and says, ‘Frank Jackson, you have been going around telling things and telling Ordinary Will Smith things,’ and I says, T never have told anything on you, Macon,’ and he says, T am just telling you now that I am going to lay a stick of wood on your head.’ He was at the woodpile then, and he put his paper down and come and got a stick of wood, and I got on the foot of my bunk and set there. I didn’t pay no attention to him — he was cussing and talking and blowing. I went on out, and these boys come to me and told me that Allen had a pick at me, and said that he was going to kill me, and I says, ‘That’s all right — haven’t I always treated you all right?’ and they said, ‘Yes,’ and I asked the water-boy that day on the works if I hadn’t always treated him all right, and he says, ‘Yes,’ and I says, ‘I just wanted to ask you this.’ That was about dinner-time. When the time come twelve o’clock to strike off, he went on out to his dinner, and I wouldn’t go out there with mine to eat with the rest of the boys, because I was afraid he would start something, and I stayed away from him and eat mine. Well, that night I was sitting at the upper side of the stove and was sitting on Frank Dorsey’s bunk, and he set down on another boy’s bunk, and he come in and says to me, ‘Frank Jackson, I want to let you know how I feel from last night,’ and went on to say what he was going to do and all. I says, ‘I thought you was through with that old argument,’ and he says, ‘I won’t be through until I lay heavy on your head.’ He was at the pile of wood then. I did not want to argue with him, and it time to turn in then, and I told him so. And he says, ‘I tell you the very reason I ain’t buying nothing from you, ’cause you always telling the white folks everything, and you always telling something on us niggers.’ He was sore at me because I wouldn’t do what he wanted me to do. I let him go on, and I went on out after that and stayed outside most of the afternoon and come back in the tent, and he says, ‘I am going to lay heavy on Frank Jackson’s head to-night.’ I just let him alone and went on in the white end of the tent, and when it got dark and got on the chain, he commenced again and told me again while he was sitting there at the box of wood, and says, 'That’s the reason I don’t like yon, Frank Jackson, — yon always having somebody pnt in the chain-gang,’ and I says, 'I ain’t never told nothing on yon,’ and he says, 'That’s the reason I ain’t got no use for yon, and I am going to lay heavy on yonr head.’ I was sitting on my bunk then, and he got his newspaper out and lay down and got up next to the pile of stove-wood, and come back and pulled his bunk next to the stove, and- my foot was right near him, and he kept on and got up and set on the foot of his bunk, and got right close to where the stick of wood was, and says, 'Frank Jackson, I told you I was going to lay heavy on your head, and I hopped up to the head of my bed, and I didn’t say nothing to him, but I went and jumped back on my bed, and he pulled out this newspaper, and when he done that, I went up to the head of my bed, and then, and then I says, 'I told you to stop fooling with me,’ and hit him one lick, but I didn’t intend to kill him— meant to hit him just enough to make him leave me alone. That’s all I got to say, gentlemen of the jury.”

L. G. Dotson and B. E. A. Hamby, for plaintiff in error.

George M. Napier, attorney-general, Robert McMillan, solicitor-general, T. B. Gress, assistant attorney-general, and Pearce Matthews, contra.  