33 Ga. 303 | Ga. | 1862
Lumpkin, J., delivering the opinion.
We should not feel inclined to notice the minor points in this case, but having determined to award a re-hearing, it becomes necessary to do so by way of direction on the next trial. As it is, we shall dispose of them very briefly.
This testimony was rejected, and we think properly. Eor after all, the affidavits were ex parte voluntary depositions, not made as evidence in the case, but for a collateral purpose, and the witnesses not subjected to a cross-examination. That the showing would have constituted a sufficient ground for a continuance of the case we entertain no doubt. But the defendant preferred risking a trial rather than submit to further
So much for the mint, anise and cummin of this case. We now proceed to consider the weightier matters of the law involved in it.
As to the office of- the Judge and jury in criminal-trials, and the reference of the Circuit Judges to another tribunal, we have said all that we care to say upon these subjects.
Suppose the jury should find from the proof that notwithstanding the threat of Alford, the fatal interview was sought by Kittrell. At any rate, that he unnecessarily threw himself in the way of Alford, that an altercation ensuing he drew his'pistol and fired first upon his adversary, when Alford took his life. Might they not conclude that the result was produced by the excitement of the moment, and not from malice aforethought in Alford ? Should the jury not have been allowed at least to examine the evidence in this and various other aspects which might have been presented of this fatal transaction ? And is there any such proerustean rule of law which attaches such consequences to the secretly arming with deadly weapons, no matter for what purpose ? Does the secretly carrying a deadly weapon import malice under all circumstances ? We have not so understood the statute. In defiance of the law, deadly weapons are secretly worn by nine-tenths of our people, for offence or defence. It may be to kill a mad-dog or a mad-man, as occasion may demand. A policeman secretly arms himself for his night watch, and in a struggle with a burglar, kills him. For this, the State makes the individual indictable and punishable. But it never occurred to the framers of this Act, that if a citizen was slain the law imputed malice to the homicide, no matter under what circumstances the killing took place, and would listen to no explanation. But we have said enough to make ourselves understood, and forbear to press this point any further.
We deem it improper to express any opinion upon the evidence.
A new trial is granted upon the grounds indicated.
Let the judgment be reversed.