FAUST v. THE STATE., 208 Ga. 53, 65 S.E.2.d 148 (1951)

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Eugene Cook, Attorney-General, Paul Webb, Solicitor-General, Frank S. French, Lay Milam, Charlie O. Murphy, and J. R. Parham, Assistant Attorney-General, contra.Swift Tyler, Wilbur B. Nall, and Marvin O'Neal Jr., for plaintiff in error.

Where, upon the trial of one charged with murder, witnesses for the State testify that the accused had told them that he shot the deceased, but that the deceased was advancing upon him with a knife, had him hemmed in, and took hold of his jacket, the issue of voluntary manslaughter was thereby made, and the court erred in failing to charge the substance of Code 26-1007 even though there was no request therefor.

The special ground of the motion for new trial complains solely because of the failure to charge voluntary manslaughter as defined in Code 26-1007. The State's attorneys contend that, if voluntary manslaughter is involved, it was injected into the case solely by the statement of the accused upon the trial and, as repeatedly held by this court, the judge was not required to charge thereon in the absence of a timely request so to do.

Counsel for the State largely rely upon the decision in Irwin v. State, 194 Ga. 690 (22 S. E. 2d, 499), to support their contention that this record shows that the accused was either guilty of murder or innocent. In that case, as in the instant one, witnesses for the State testified as to voluntary statements of the accused, in which he admitted the killing but added exculpatory statements. Here those statements might show danger of serious injury short of a felony, while there the threat of injury--being that of shooting--would have been a felony and, if the jury believed the threat there shown, they would have been required to acquit the accused, but here they might have found him guilty of voluntary manslaughter. This distinction between the facts renders that decision inapplicable to the present case. The evidence, independent of the statement by the defendant, being sufficient to make a case involving voluntary manslaughter, the court erred in failing to charge thereon, even though no request to so charge was made. Burke v. State, 196 Ga. 702 (27 S. E. 2d, 313).

Judgment reversed. All the Justices concur.

1951

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