The verdict was authorized by the evidence; and none of the grounds of the motion for new trial, which are also dealt with in the opinion, authorize setting it aside.
No. 15084. FEBRUARY 8, 1945. The defendant, Willie Ingram, was convicted of murder, and, upon a recommendation of mercy by the jury, was sentenced to life imprisonment in the penitentiary. The evidence disclosed that the defendant and Jerry Dunn, Jerry's nephew, James Dunn, and, according to one of the witnesses, Woodrow Reid, and perhaps others, were engaged in a "crap game" on an early Sunday morning *Page 832 in July, 1944; that the defendant borrowed two dollars from James Dunn, and pulled off his shoes to pawn as security. James handed the shoes back to him, and he and James then went to the defendant's home to get the two dollars from the defendant's wife. She was not at home, and he told James to come back "that evening" after his wife came home, and he would get the money from her and repay the borrowed money. James left, and, according to his evidence, went back to the "crap game" where Woodrow and Jerry were, but not to get them; that he met them on their way home, and they came with him back to the defendant's house. As to what happened when James Dunn and Jerry Dunn reached the defendant's house, to which they were accompanied by Woodrow Reid, and were joined there by Will Lawrence, who lived next door in the rear of James Dunn's house, the testimony of these three eyewitnesses as to the facts of the homicide do not agree as to whether, when they approached the rear of the defendant's house, the defendant came out of his house with the shotgun, or from around the corner of the house; or as to whether one of these three witnesses, Woodrow Reid, came to the house where the homicide occurred from the "crap game;" or whether, according to his own evidence, he just happened there. While Will Lawrence testified that Jerry Dunn and the other two witnesses did enter just inside the hallway of the defendant's house, this is not fully in accord with the testimony of James Dunn, since the latter swore that they came "to the (defendant's) doorstep." The testimony of all three eyewitnesses is in substantial accord, however, in that all swore in effect that, when Will Ingram came up with the shotgun, he first pointed it at James Dunn, who ran back a little, and Will Lawrence shouted, "Don't shoot that boy!" and that, when he then pointed it at Jerry Dunn, Jerry said that he didn't come after any disturbance, but just came after the boy's two dollars, and the defendant said, "Get out of here," and immediately shot Jerry, killing him. They all swore that they did not see Jerry try to hurt the defendant in any way, and that they did not see any knife or other weapon on him. The city policeman swore that he was the first white man to reach the deceased where he fell, a short distance from the defendant's house, and on searching the body found a pocketbook and an old pocketknife (shut) in his pocket. There was some testimony from the sheriff to the effect that it was said *Page 833 that the defendant's mother who lived in the same house with him, had previously been paralyzed and was partially disabled; and that when the sheriff saw her after the shooting she was laboring under much excitement. The defendant's statement was as follows: "I borrowed two dollars from that boy on a pair of shoes, and he was to go with me home and get the money. When we got home, my wife was not there, and I told him if he would wait until my wife came I would pay him the two dollars. I said, `Maybe you won't have to wait, I will see if I can get it from another lady, Sallie, below me.' I went down there and asked her, and she said she didn't have it, she would let me have it if she had it. I went back and told him. He decided to wait until my wife came. I went on and sat down and eat. I said, `Will you have breakfast?' He said, `No.' I got through eating, got up and went in my room and changed clothes, pulled off my shoes and changed clothes. When I got back, I looked and this boy was gone. I thought maybe he had gone to Five Points and would be back directly. I didn't know he was gone, he didn't say nothing to me. About an hour or something like that, they came back; and when they came back, this here Jerry and the Reid boy was with him and they were in the house before I knew it; they didn't knock on the door. Before I knew anything, Jerry grabbed me with a knife and told me to give him two dollars. I snatched loose from him and slammed my door to, across from the door to Mama's room. They went to work, knocking against the door. It had a good latch on it; they couldn't open the door. He said, `Get a God damn axe and cut the God damn door down;' and just as he left the door when he said that, I knew it would not do for me to stay in the room and let them get an axe and come in on me, I got out of the room and ran across the hall in my mother's room and got the shotgun. When I got the gun, I come out of the room and went out on my back porch and stepped off on my steps, down on the ground, and here come all three boys around the house. I said, `Get back, don't come any further. You all get away from here. You have been in my house and tried to kill me. Get back, don't come any further.' I went on back. He came, getting out his knife on me, in his hand. I said, `You coming anyhow?' and I saw they were coming anyhow and I shot him. And when I shot, I unbreeched the gun and threw the old shell out. I thought I might *Page 834 not stop them but was going to have to shoot again, and I threw it up that way and he broke and run, ran up on the porch at the next door. When he ran, I ran in the house and got three shells and ran back where I was on the ground and I looked. These other boys were going through my garden, through the corn field, out of sight, hitting the bottom down there. I would not have done this if I was not forced to do it. I begged the boys to go back. I didn't want to do nothing to them, but I couldn't let them come on me with a knife. Said he was mighty bad about cutting folks with a knife, done cut one man in Monticello and one man all to pieces three weeks, in Shadydale, before coming in my house, and then broke in the house of a man who had laid down and went to sleep and he jumped out and ran before he shot, said he would have shot him. I did not want him to cut me and tried to get him to go back and they would not do it. They come on me and my mother in my home, I got a chance to get ahead of him, that is all; didn't they would have killed me. I had to have a doctor for my mother. They wanted to run me clean away from home. If I hadn't shot him, he would have come on and killed me; if I had run I believe they would have caught me. If you find I am in the wrong, I am sorry, and ask you all to have mercy on me, and ask you all to be as light on me as you can be. If you find I should have justice in my case, I beg you all if you will to please give me justice, because he mistreated me." 1. It cannot be said that the verdict as rendered was without evidence to support it. The evidence does not disclose that, when James Dunn first accompanied the defendant back to his house in order that the defendant might obtain and repay the two dollars borrowed by him from James, any aggressive words or disorder of any kind occurred. On the return of James Dunn soon thereafter (instead of in the "evening," as invited), accompanied by Jerry Dunn who was his uncle, and by Woodrow Reid, it appears from both of these witnesses as well as from Will Lawrence, who lived next door in the rear of the defendant's home, that the deceased was apparently unarmed; and that, despite the admonition of Lawrence, and despite the declaration *Page 835 of the deceased that they did not come to raise any disturbance, but only after the two dollars, the defendant immediately fired upon the deceased, making the declaration, "get out of here." While counsel for the defense makes a strong and ingenious argument, that under all the surrounding facts and circumstances, including the condition of the defendant's invalid mother, the killing was justifiable as having been perpetrated against one who (in the language of the Code, § 26-1011), manifestly intended and endeavored in a riotous and tumultuous manner to enter the habitation of another for the purpose of assaulting or offering personal violence to some person dwelling or being therein, we cannot hold, as a matter of law, that, from the testimony and all the proved surrounding facts and circumstances, such was the case; but, on the contrary, the jury was authorized to find, as they did, that the defendant was guilty of murder as defined by the Code and given in charge. Accordingly, the general grounds of the motion for new trial are without merit.
2. The court, after giving in charge the legal definition of murder, and the definition of express and implied malice, instructed the jury as follows: "Legal malice is not ill will or hatred. It is an unlawful intention to kill, without excuse, justification, or mitigation, which intention, however, must exist at the time of the killing alleged, but it is not necessary for that intention to exist for any length of time before the killing. In legal contemplation, a man may form the intention to kill, do the killing instantly, and regret the deed as soon as it is done. Legal malice is the intent unlawfully to take human life where the law neither mitigates nor justifies the killing. In other words, gentlemen, murder is the intentional killing of a human being by the intentional use of a weapon in a manner that, as used at the time, is likely to kill, and a killing also without excuse, justification, or mitigation." The defendant excepts to the quoted excerpt from the charge because it is at variance with and conflicts with the definition of murder which had been previously given, in that it excludes the element of "malice aforethought," lacks the element of unlawfulness, and omits the requirement that the killing be in the peace of the State. It has often been held by this court that the term, "malice aforethought," does not mean that an interval of time must transpire between the unmitigatedly illegal intent to *Page 836 kill and the perpetration of the act of killing. If at the time of the killing such a purpose and intent does exist, it must have existed prior to the killing. The charge excepted to is in this respect almost identical with the instructions approved in Long v. State, 127 Ga. 350, 354 (56 S.E. 444). Nor did the language of the extract leave out the element of unlawfulness, but it specifically referred to a killing that was without excuse, justification, or mitigation, thus excluding all reference to cases of voluntary manslaughter. The same observation can be made as to the point that the definition of legal malice failed to take into account the definition of murder, already given in charge, which excludes killing done "in the peace of the State," that is, not in military service or in obedience to duties legally imposed in putting down riots or insurrection.
3. Another ground of exception is that the judge, in charging upon the subject of voluntary manslaughter, failed to include a reference, as he did in charging upon the offense of murder and justifiable homicide, to the doctrine of reasonable fear. This ground of the motion is without merit. Cargile v. State,137 Ga. 775 (4) (74 S.E. 621); Ellison v. State, 137 Ga. 193 (6) (73 S.E. 255); Jones v. State, 193 Ga. 449 (2) (18 S.E.2d 844).
4. Exception is taken to the following excerpt from the charge: "Justifiable homicide is the killing of a human being in self-defense or in defense of habitation, property, or person, against one who manifestly intends or endeavors by violence or surprise to commit a felony on either, or against any persons who manifestly intend and endeavor in a riotous and tumultuous manner to enter the habitation of another for the purpose of assaulting or offering personal violence to any person dwelling therein. And in this connection I read you § 72 of the Penal Code of this State: `If, after persuasion, remonstrance, or other gentle measures used, a forcible attack and invasion of the property or habitation of another cannot be prevented, it shall be justifiable homicide to kill the person so forcibly attacking and invading the property or habitation of another; but it must appear that such killing was absolutely necessary to prevent such attack and invasion, and that a serious personal injury was intended, or might accrue to the person, property, or family of the person killing.' I also read to you, gentlemen, § 74 of the Penal Code of this State, which provides: `Parents and *Page 837 children may mutually protect each other, and justify the defense of the person or reputation of each other;' and I charge you, in this connection, that the protection of a mother would come within the provisions of the section which I have just read, that is, the protection of the mother by the defendant. A bare fear of any of those offenses, to prevent which the homicide is alleged to have been committed, shall not be sufficient to justify the killing. It must appear that the circumstances were sufficient to excite the fears of a reasonable man, and that the party killing really acted under the influence of these fears and not in a spirit of revenge. The term felony as used in this connection means an offense for which the offender, on conviction, shall be liable to be punished by death or imprisonment in the penitentiary, and not otherwise." The exception to this portion of the charge is made in the following language: "Movant avers that, while said charge was substantially accurate as abstract propositions of law, it was error for the court to instruct the jury on justifiable homicide under the various principles above given, and then give in addition thereto and immediately in connection therewith any definition of the term felony, without explaining to which portion of said charge such definition was applicable, and without instructing the jury that the term felony applied only to the first defense referred to, and did not apply to the other defenses set out in said charge. Movant contends that, in giving said definition of the term felony immediately following and in connection with the charge on justifiable homicide just preceding it, [the court] made it appear to the jury that the term felony applied to said charge in its entirety, and probably misled the jury into believing that the defendant would not be justified in killing the deceased in any event except to prevent the commission of a felony." It will be noted that, in the beginning of this excerpt, the jury was told that the killing of one who manifestly intends by violence or surprise to commit a felony against the person, property, or habitation of another is justifiable; then, beginning with the disjunctive "or," the jury was also instructed that the killing would be justifiable if inflicted against one who manifestly intends in a riotous and tumultuous manner to enter the habitation of another for the purpose of assaulting or offering personal violence to any person dwelling therein. It is true that it was only after elaborating this latter portion of the *Page 838 charge, in accordance with the provisions of other related Code sections, that the judge did, as complained of, define the meaning of the word felony as it had been previously used. Whether or not this procedure on the part of the judge could ordinarily have been confusing, we do not think that in this case it could possibly have been so, since the judge, in his full, fair, and clear instructions, not only repeated, in the alternative, the two justifications indicated after the definition of felony had been given, but charged the jury, in the same general connection, as follows: "I charge you, gentlemen of the jury, that a person may be justifiable in killing to prevent his habitation from being entered through violence or surprise by persons attempting to enter in a riotous manner, even though they have no actual or apparent intention of committing a felony therein, but intend merely to commit a misdemeanor upon the slayer or some person dwelling in the habitation."
Judgment affirmed. All the Justices concur, except Wyatt, J.,absent because of illness.