Graham v. State

Luke, J.,

dissenting. I can not agree to the second division of the decision. In my opinion, the evidence of the State was in substance that the deceased was coming towards the accused without any attempt or threat to commit a serious personal injury upon him. The statement of the defendant and the evidence introduced by him was in substance that the deceased had threatened to kill him, that the threat had been communicated to him, and that at the time of the homicide the deceased was advancing upon him with a knife. The evidence of the State made a case of murder, while that of the defendant made a case of justifiable homicide; and for this reason the trial judge, in my opinion, erred in charg*599ing on voluntary manslaughter. See James v. State, 123 Ga. 548 (51 S. E. 577); Worley v. State, 138 Ga. 336, 339 (75 S. E. 240); Dyal v. State, 97 Ga. 428 (25 S. E. 319); Hudson v. State, 24 Ga. App. 310 (100 S. E. 784).