
    O’Rear v. The State.
    No. 2309.
    March 16, 1921.
    Indictment for murder. Before Judge Walker. Taliaferro superior court. November 1, 1920.
    Ad O’Rear was convicted of the murder of Walter Jarrell, with, recommendation of mercy. The only special exception was that the court erred in failing and refusing to charge the j'ury on the law of voluntary manslaughter (it not appearing that there was a request for such instruction), because all the evidence, facts, and circumstances showed that that offense, upon a sudden quarrel and a mutual intent by the accused and the deceased to engage in mutual combat with pistols, was clearly involved in the case. From the brief of evidence it appears that the homicide was committed on a Sunday afternoon in June, 1930, at a buggy-shelter near a church where services had been conducted. When witness Dunn walked up there Ad was cursing Walter, calling him a vile name, and saying, "If you don’t like what I do, why don’t you do something?” Ad pulled a pistol from his pocket and cocked,it. Dunn said, " Ad, don’t do that; you will get into trouble.” Ad said, " God damn you, I will attend to my own business.” About that time Ad shot twice, and Dunn ran away. He heard other shots after that. The buggy was under the shelter, front first. Ad was standing between the shafts, and Walter at the rear wheels. Walter had nothing in his hands. He just said, "If you don’t like what I did, why didn’t you say something down there? ” Several other persons were present. When one of these, named Pete, got there "the fuss had started.” Ad was cursing Walter, who told him that he didn’t come there for a fuss and didn’t' want a fuss. Ad kept on cursing, and pulled out his pistol and shot; and Pete ran off. He could see Walter’s hand, but saw nothing in it. Walter did not make any movement with his hand. He did not seem to be mad, and Pete did not hear him curse Ad. He did not do any shooting. Pete did not see him with a pistol; does not know whether anybody but Ad was shooting or not, as he ran off.— Another witness, Alexander, testified that he was at the shelter when Walter walked up. Ad was already there. “Walter walked up and walked around that way, and I heard Ad say, ‘Keep your God damn mouth shut and run your business,’ and run his hand in here; and Walter walked around and slapped his foot on the buggy-step. Ad was on the right side of the buggy, and Walter said, ‘ I have not said a word to you,’ and he said, ‘ I say keep your God damn mouth shut,’ and I' walked away, and the shooting started, and I didn’t look back any more. . . Walter didn’t have a thing in his hand; he had his hand on his hip here this way. Walter didn’t make any movement to go in his pocket. If Walter was mad I couldn’t tell it; he didn’t look that way. Ad commenced cursing him. I didn’t see anybody with a pistol but Ad. . . There was more than one shot. I did not stop to count the shots.”— Another witness testified, that while she and two other women were talking, Ad passed them and said, “ God damn.” One of them called him and said, "Ad, don’t get into nothing/’ and he said, “ I am not going to get into nothing.” He went on down there and was talking to the Jarrell boy. “ Ad was this way with his back toward us, and the pistol fired. I run around the corner of the house, and then they stopped shooting, and Ad come up there. I didn’t see nobody shoot but Ad. I saw him shoot; didn’t see any one else. He shot at Jarrell,” who “was standing between the buggy-wheels when he shot him. I didn’t see no pistol in his hand. . . I did not see him with any pistol. Nobody was shooting but Ad when I looked. I couldn’t tell how many shots fired.” One of the other two women said to Ad, “ I told you not to do it,” and Ad said, “Didn’t you see him shooting me in the face ? ”
   Gilbert, J.

The evidence relied on by the State for a conviction tends to show that the accused committed murder, whereas the statement of the accused and the evidence introduced in his behalf tend to sustain the defense of justifiable homicide. The law of voluntary manslaughter was not involved. McBeth v. State, 122 Ga. 737 (50 S. E. 931). The court did not err in failing to instruct the jury in regard thereto. No error is assigned upon any ruling during the trial, nor upon any charge or any other omission to charge the jury. The evidence authorized the verdiet.

Judgment affirmed.

All the Justices concur, except Pish, G. J., and Atkinson, J., dissenting,' and George, J., absent.

Fish, C. J., and Atkinson, J. There was evidence which would have warranted a finding that the defendant and the deceased, upon a sudden quarrel, each being armed with a deadly weapon, mutually engaged in a mortal combat, each using his weapon and intending to kill the other therewith. Under such circumstances it was the duty of the judge, without request, to give in charge to the jury the law of voluntary manslaughter as related to the doctrine of “mutual combat,” and the omission to do so was cause for new trial, the accused having been convicted of murder. Waller v. State, 100 Ga. 320 (28 S. E. 77); Butt v. State, 150 Ga. 302 (103 S. E. 466).

For the defendant Swain testified, that as he came by the shelter they shot, and when he looked under the shelter Ad and Walter were both shooting. He did not know who shot first. He kept on going. It was no time between the first shot and the next one. They just kept on shooting. After the first shot he saw them both shooting; did not know how many shots were fired, or how many pistols were shooting; did not know that Ad shot Walter; did not see it. He was the only man witness saw with a pistol; did not see anybody take a pistol from Walter after he was shot. — Young testified that after the shooting, after they had put Walter into the buggy, he saw a man (stranger) reach into Walter’s pocket, take therefrom a pistol, and put it into his own pocket.— Holden testified : “ When the first shot fired I had my back turned, and then I turned and looked up toward the shelter, and it looked like Ad was fighting smoke or dust or something with both of his hands. Then I saw him get his gun out of' his pocket, and he started to shooting. . . I did not see Walter do any shooting. I could see where he was after I looked around. . . I did not see Walter with a pistol. I don’t know he had a pistol. . . I didn’t see any pistol taken from his pocket. I didn’t stay there. I don’t know who fired the first shot. . . Ad shot so fast I couldn’t count the shots.”— Walker testified: “ I wasn’t paying them no attention until I heard the noise. I saw Walter with a pistol. I saw Walter shoot his pistol. Walter shot first; he shot before Ad shot. When he made the first shot I saw Ad fighting the smoke out of his face, and I . . went toward the shelter. I never did see Ad shoot at all. I was not looking at him all the time. When Walter shot I . . went to the church. I didn’t see any other shooting at all. I heard it, but I didn’t see it. . . I didn’t stay there no time after "Walter shot. I left right then. I saw Ad fighting smoke, and I looked and went on toward the church. Ad was fighting smoke with both hands. If he had a pistol I would have seen it. Ad was standing, facing "Walter. Walter did not have his back to him, kinder side to him. . . The first thing that attracted my attention there was a shot. I didn’t see anything. I then saw Walter shoot; that was the next thing I saw. I saw Walter shoot at Ad with a pistol. I saw Ad fighting to get out of the smoke, with his hands up this way, with his back to me. T heard words down there. The first shot I saw Walter shot it.”— Ogletree testified that he was about 250 yards away, and thought he heard eight or ten shots fired; and that all of them were close together, except that there were about fifteen or twenty seconds between the first and the others.— The accused stated that he went to the shelter to get a drink of liquor from Dunn, and while so doing Walter walked up and said, “ Don’t sell that [vile name] a drink.” Continuing, accused stated: I said, ‘ Keep your mouth out of my business,’ and he said,f Don’t you like what I said? ’ and I said, ‘ No I don’t,’ and that time he come out with his pistol. Just as he threw it up I turned my head that way, and the smoke was all in my eyes. I knocked the smoke out of my face and when he made his next shot, and when I got mine out I let in on him.”

Alvin G. Goluclce and J. A. Beazley, for plaintiff in error.

B. A. Denny, attorney-general, B. G. Norman, solicitor-general, and Graham Wright, contra.  