1. The evidence sustains the verdict on the general grounds.
2. Where one is charged with murder, and is convicted of voluntary manslaughter, it is not reversible error for the court to fail to charge the law applicable to mutual combat, even though the evidence demands it. Conceding that the evidence in the instant case involved mutual combat, such fact would serve only to reduce the crime from murder to manslaughter. Hence, the failure to charge the law applicable to mutual combat was harmless to the defendant. Where the evidence in a case of homicide or assault with intent to murder involves mutual combat, the law considers both persons equally at fault. Hence, an accused, under such a situation, can not in any event be acquitted until and unless the evidence further shows that his antagonist was the assailant, or that he himself had repented and disrobed himself of his mutual wrong, and that it was absolutely necessary for the accused to act in his own defense.
DECIDED MARCH 14, 1946. The defendant and the deceased engaged in a quarrel using derogatory words to each other. The use of such words led to a fist fight, whereupon the defendant drew a knife and inflicted with it a mortal wound. He was tried for murder and convicted of voluntary manslaughter. His attorney filed a motion for a new trial on the general grounds and thereafter added several special grounds. All of the special grounds were abandoned except one, alleging reversible error because the court failed to charge the law applicable to mutual combat. To the overruling of the motion for a new trial the defendant excepts.
1. As to the general grounds, the evidence sustains the verdict.
2. It is established beyond peradventure that the law applicable to mutual combat presupposes that both the defendant and the victim are equally at fault in the rencounter. Otherwise it could not be mutual. Whether the crime alleged to have been committed is that of murder or assault with intent to murder and the evidence sustains such view, the accused can not legally be acquitted. If death results, and mutual combat is involved, the crime is not murder but voluntary manslaughter under the principle of mutual combat. If death does not result and the offense is that of assault with intent to murder and the facts sustain mutual combat, then in that *Page 557 event the accused could be convicted, not of assault with intent to murder, but of a lower grade of offense. The gravamen of the error assigned here is that the facts show that the accused and the deceased were engaged in mutual combat, that is, that they mutually agreed to fight it out to the finish — that both intended to kill each other, but that the defendant accomplished his intent to kill the deceased before the deceased killed him, and therefore the court should have charged the principle of law applicable to mutual combat. This position is not tenable. It is evident that, if they both mutually intended to kill each other in mutual combat, and the defendant was more successful in this intent than the deceased, he could not have been acquitted under the law of mutual combat. The only other result could have been to have reduced the crime from murder to manslaughter. This the jury did. So the defendant has no complaint that the court did not charge the law of mutual combat. Many cases are cited to the contrary, but none of them support the theory of able counsel for the defendant.
In Warnack v. State, 3 Ga. App. 590 (60 S.E. 288), the court held that the facts in that case did not involve mutual combat, and the case was reversed on the ground that involuntary manslaughter was involved under the evidence, and the court should have so charged.
In Powell v. State, 101 Ga. 9 (29 S.E. 309, 65 Am. St. R. 277), there was a reversal because the court charged the jury that, in order to acquit, they should find that the defendant took the life of the deceased to save his own life, whereas the defendant had the right to kill to prevent a felonious assault upon him.
In Wilson v. State, 176 Ga. 198 (167 S.E. 111), the verdict was murder. The case was reversed because the evidence showed mutual combat, and the court failed to charge on this theory which the evidence demanded.
Hall v. State, 177 Ga. 794 (171 S.E. 274), involved a verdict of murder, and there was a reversal on the ground that the court failed to charge the law of mutual combat, where the evidence demanded such charge.
Jenkins v. State, 34 Ga. App. 688 (131 S.E. 112), involved a verdict of assault with intent to murder. The evidence involved mutual combat. This court reversed the lower court because, under the evidence as to a mutual combat, the law authorized a lesser verdict than assault with intent to murder. *Page 558
In Findley v. State, 125 Ga. 579 (54 S.E. 106), the verdict was murder. The evidence demanded and the court failed to charge the law applicable to mutual combat. Under the theory of this case, if mutual combat had been charged, the jury would have been authorized under the evidence to reduce the penalty from murder to manslaughter. We think that this question is dealt with fully in Cribb v. State, 71 Ga. App. 539 (31 S.E.2d 248).
Moreover, the present facts did not involve the theory of mutual combat, under the contemplation of the law dealing with that question. A mere fist fight does not involve the law of mutual combat. Watson v. State, 66 Ga. App. 242 (17 S.E.2d, 559). In the instant case, until the mortal blow was struck there was nothing more than a mutual fist fight.
The court did not err in overruling the motion for a new trial for any of the reasons assigned.
Judgment affirmed. Broyles, C. J., and Gardner, J., concur.