Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 26-1011 are included in the annotations for this Code section.

Justifiable homicide is in law itself a substantive and affirmative defense, and, if found well supported in fact, accused is entitled to acquittal without reference to evidence which apparently tends to convict the accused of offense of murder or voluntary manslaughter. Fountain v. State, 207 Ga. 144, 60 S.E.2d 433 (1950), overruled on other grounds, Lavender v. State, 234 Ga. 608, 216 S.E.2d 855 (1975) (decided under former Code 1933, § 26-1011).

Purpose of former Code 1933, § 26-904(b) is to provide justification only for repulsion of a forcible felony. Adultery, in addition to fact that it is not a felony, is a consensual and nonviolent crime. It appears unlikely, in view of the trend of modern law, that except in extreme circumstances, it can stand as a complete justification for homicide, although always relevant to degree of crime. Henderson v. State, 136 Ga. App. 490, 221 S.E.2d 633 (1975) (see O.C.G.A. § 16-3-24(b)).

Justification, if established, should always result in acquittal. Gordy v. State, 93 Ga. App. 743, 92 S.E.2d 737 (1956) (decided under former Code 1933, § 26-1011).

Resistance by armed force of actual attempt to commit robbery is justifiable and one cannot create emergency which renders it necessary for another to defend self, and then take advantage of effort of such other person to do so. Hill v. State, 211 Ga. 683, 88 S.E.2d 145 (1955) (decided under former Code 1933, § 26-1011).

Homicide in resisting robbery may be justified.

- Violent taking of money or property from person of another by force or intimidation for purpose of applying same to payment of a debt, to which money or property taker has no bona fide claim of title or right of possession, constitutes offense of robbery. Resistance by armed force of actual attempt to commit such a robbery would be justifiable provided that "circumstances were sufficient to excite fears of a reasonable man" that such an offense was about to be committed, and that party killing really acted under influence of those fears, and not in a spirit of revenge. Daniel v. State, 187 Ga. 411, 1 S.E.2d 6 (1939) (decided under former Code 1933, § 26-1011).

When presence of spirit of revenge does not preclude justification.

- When one contends that one acted under the fears of a reasonable man, that is, under apparent rather than absolute necessity, it must appear that one did act under such fears and not in a spirit of revenge. However, if one must take one's adversary's life in order to save own or to prevent commission of felony upon one's person, property, or habitation, then it matters not what feelings of malice or revenge one may also entertain. Crolger v. State, 88 Ga. App. 566, 77 S.E.2d 98 (1953) (decided under former Code 1933, § 26-1011).

One entering another's property intending to commit imprudent and felonious act assumes risk of consequences. Johnson v. Jackson, 140 Ga. App. 252, 230 S.E.2d 756 (1976).

Name-calling not trespass.

- When a defendant is provoked to assault a trespasser by the trespasser's name-calling and not out of an intent to prevent a trespass, O.C.G.A. § 16-3-24 does not justify the assault. Dalton v. State, 187 Ga. App. 569, 370 S.E.2d 823 (1988).

One cannot use deadly force in arresting or preventing escape of misdemeanant, even though no other means is available. Johnson v. Jackson, 140 Ga. App. 252, 230 S.E.2d 756 (1976).

Landowner has right to shoot person who is or reasonably appears to be a burglar. Johnson v. Jackson, 140 Ga. App. 252, 230 S.E.2d 756 (1976).

Former Code 1933, § 26-904 does not authorize destructive removal of fence and locked gate blocking driveway. State v. Moore, 243 Ga. 594, 255 S.E.2d 709 (1979) (see O.C.G.A. § 16-3-24).

Husband was not justified in using physical force against wife in defense of prosecution for simple battery because the property she took was not the "property of another" within the definition provided by O.C.G.A. § 16-8-1(3), applying to theft, and her conduct was not cognizable as tortious interference due to application of the doctrine of interspousal tort immunity. Barron v. State, 219 Ga. App. 481, 465 S.E.2d 529 (1995).

When the defendant was charged with aggravated assault and family-violence battery arising from a chokehold the defendant applied to the defendant's pregnant wife, the defendant's motion for immunity was improperly granted because the defendant and the victim were married at the time of the altercation, they lived in the house where the incident occurred together, the victim routinely took care of the parties' small dog, and the victim was entitled to handle the dog, including putting the dog out of the house; and the defendant reacted to the victim's struggling against the chokehold by tightening the defendant's grip, which was not justified as the victim was not committing a forcible felony against the dog. State v. Morgan, Ga. App. , 814 S.E.2d 823 (2018).

Nature of issues for jury determination arising under section.

- Relation between landowner and burglar or felon, owner's right and authority to arrest felon and allowable force in effectuation thereof, and duty owed by landowner to one who is there for purpose of committing a felony are questions for determination of jury. Johnson v. Jackson, 140 Ga. App. 252, 230 S.E.2d 756 (1976).

Whether force used was reasonable or whether killing was necessary are for jury determination. Johnson v. Jackson, 140 Ga. App. 252, 230 S.E.2d 756 (1976).

When charge covers elements of justifiable homicide, language of subsection (b) need not be charged.

- When charge given sufficiently instructs jury on elements of justifiable homicide, in absence of any request to charge, or objection to charge, it is not error to fail to charge in language of former Code 1933, § 26-904(b). Brooks v. State, 227 Ga. 339, 180 S.E.2d 721 (1971) (see O.C.G.A. § 16-3-24(b)).

Erroneous charge on justifiable homicide not cured by verdict of guilty of lesser grade than murder.

- Erroneous charge or failure to charge on accused's defense or defenses of justifiable homicide is not cured by verdict finding accused guilty of some lesser grade of offense than murder. McKibben v. State, 88 Ga. App. 466, 77 S.E.2d 86 (1953) (decided under former Code 1933, § 26-1011).

In charging justifiable homicide, failure to define felony, absent request, does not require new trial. Fountain v. State, 207 Ga. 144, 60 S.E.2d 433 (1950), overruled on other grounds, Lavender v. State, 234 Ga. 608, 216 S.E.2d 855 (1975) (decided under former Code 1933, § 26-1011).

Jury instruction proper on defense of personal property during aggravated assault.

- Trial court did not commit plain error in charging the jury because the jury was charged that the defendant's use of deadly force in defense of property would be justified if reasonably believed to be necessary to prevent the commission of a forcible felony and that aggravated assault was a forcible felony; thus, the jury had sufficient direction in order to intelligently consider the defense-of-personal-property theory of justification based on the defendant's claim that the victim committed aggravated assault when the victim lunged at the individual holding the gun and attempted to wrestle the gun away from the other individual. Hood v. State, 303 Ga. 420, 811 S.E.2d 392 (2018).

Failure to give an instruction as to the elements of a forcible felony, which felony the defendant asserts as justification for the shooting of the alleged felon, is error which is substantial and harmful as a matter of law, so that defendant's failure to request such instruction does not preclude defendant's raising on appeal the issue of the court's failure to make such instruction. Laney v. State, 184 Ga. App. 463, 361 S.E.2d 841 (1987).

Because the defendant was on the victim's premises unlawfully and initiated violence by lunging at the victim, pursuant to O.C.G.A. §§ 16-3-23 and16-3-24, the victim's efforts to defend the house and a mail truck were entirely legal; consequently, there was no evidence to support a jury charge on justification under O.C.G.A. § 16-3-21(a). Robinson v. State, 270 Ga. App. 869, 608 S.E.2d 544 (2004).

No evidence to support instruction on justification.

- Although the defendant indicated that the defendant believed a civilian code enforcement officer and a police officer were "stealing" the defendant's vehicles, that belief was unfounded because the vehicles were being removed after the defendant failed to clean up property; thus, there was no evidence of tortious or criminal interference with the defendant's property to justify a jury instruction on the use of force under O.C.G.A. § 16-3-24. Adcock v. State, 317 Ga. App. 468, 731 S.E.2d 365 (2012).

Instruction sufficient to consider defense of personal property theory.

- Trial court did not commit plain error in instructing the jury because the jury had sufficient direction in order to intelligently consider the defense-of-personal- property theory of justification based on the defendant's claim that the murder victim, who the defendant believed had stolen the defendant's cocaine, committed aggravated assault when the victim lunged at an accomplice to attempt to wrestle away the gun that the accomplice and the defendant had been using to threaten the victim; and because there was not a reasonable probability that the outcome of the trial would have been more favorable to the defendant had the trial court given the additional instruction on the statutory definition of "forcible felony." Hood v. State, Ga. , S.E.2d (Mar. 5, 2018).

In the defendant's trial for cruelty to a child and false imprisonment, O.C.G.A. §§ 16-5-70(c) and16-5-41(a), respectively, based on the defendant's locking the defendant's seven-year-old son in a wooden box the defendant built for the purpose and also binding the child in a sleeping bag, the trial court did not err in failing to instruct the jury on self-defense, defense of habitation, and defense of property other than habitation, nor was counsel ineffective in failing to request these instructions. Leslie v. State, 341 Ga. App. 731, 802 S.E.2d 674 (2017).

Cited in Carlton v. Geer, 138 Ga. App. 304, 226 S.E.2d 99 (1976); Colson v. State, 138 Ga. App. 366, 226 S.E.2d 154 (1976); Adams v. State, 139 Ga. App. 670, 229 S.E.2d 142 (1976); Williams v. State, 144 Ga. App. 72, 240 S.E.2d 591 (1977); Reinertsen v. Porter, 242 Ga. 624, 250 S.E.2d 475 (1978); Moore v. State, 148 Ga. App. 469, 251 S.E.2d 376 (1978); Powell v. State, 154 Ga. App. 568, 269 S.E.2d 70 (1980); Radney v. State, 156 Ga. App. 442, 274 S.E.2d 800 (1980); Rivers v. State, 250 Ga. 288, 298 S.E.2d 10 (1982); Nelson v. State, 213 Ga. App. 641, 445 S.E.2d 543 (1994); Denny v. State, 226 Ga. App. 432, 486 S.E.2d 417 (1997); Fair v. State, 284 Ga. 165, 664 S.E.2d 227 (2008); Bunn v. State, 284 Ga. 410, 667 S.E.2d 605 (2008).

Am. Jur. 2d.

- 6 Am. Jur. 2d, Assault and Battery, § 71 et seq. 40A Am. Jur. 2d, Homicide, § 174 et seq.

Justified Use of Force in Defense of Private Property, 38 POF2d 731.

C.J.S.

- 40 C.J.S., Homicide, § 163.

ALR.

- Duty to retreat to wall as affected by illegal character of premises on which homicide occurs, 2 A.L.R. 518.

Homicide or assault in defense of habitation or property, 25 A.L.R. 508; 32 A.L.R. 1541; 34 A.L.R. 1488.

Right to use force to obtain possession of real property to which one is entitled, 141 A.L.R. 250.

Homicide: duty to retreat as condition of self-defense when one is attacked at his office, or place of business or employment, 41 A.L.R.3d 584.

Use of set gun, trap, or similar device on defendant's own property, 47 A.L.R.3d 646.

Unintentional killing of or injury to third person during attempted self-defense, 55 A.L.R.3d 620.

Homicide: duty to retreat where assailant is social guest on premises, 100 A.L.R.3d 532.