26 S.E.2d 755 | Ga. | 1943
1. In the trial of one charged with murder, it was not error for the judge, after he had stated the issue and given the definition of murder and of malice, to add, "So that, gentlemen of the jury, if you believe beyond a reasonable doubt that this defendant did with malice aforethought, either express or implied, in the way and manner alleged and described in the bill of indictment, without justification, mitigation, or excuse, kill the deceased, then he is guilty of murder."
2. In such a case it was not erroneous, in giving the following instructions, to omit therefrom what grade of manslaughter was meant, the court in other portions of the charge instructing the jury on the law of voluntary manslaughter: "I charge you, gentlemen of the jury, that under the law a man can not use a weapon likely to produce death, if this instrument that he used was a weapon likely to produce death, and kill a man in resentment of a bare assault or assault and battery on him and be justified of the offense of murder, but he may be guilty of manslaughter if he killed under these circumstances."
3. It was not error, in instructing the jury as to what the law meant by malice, to define express malice as well as implied malice.
4. It is not cause for new trial that in charging as to "cooling time" the judge instructed the jury that, "if there should have been an interval between the assault or provocation given and the homicide — of which the jury in all cases shall be the judges, sufficient for the voice of reason and humanity to be heard, the killing shall be attributed to deliberate revenge and punished as murder;" the complainant presenting the contention that there was no evidence of any interval between the alleged assault and the homicide.
5. One ground of the motion contends that the judge greatly prejudiced the movant's case by charging that "The defendant contends, gentlemen of the jury, that the white man knocked him down, and that he, the defendant, got up and hit him, the white man, with his knife. These are substantially his contentions." This ground is without merit. The record shows that the judge was dealing with what the accused recounted in his statement, referring to the deceased only as "a white fellow."
6. Nor is any error shown in instructing the jury that "Provocation by words, threats, menaces, or contemptuous gestures shall in no case be sufficient to free the person killing from the guilt and crime of murder."
7. It was not error to charge that "This defendant enters into the trial of this case with the presumption of innocence in his favor, and that presumption *469 remains with him throughout the trial and until his guilt is established by the evidence beyond all reasonable doubt."
8. The contention that the court wholly failed to instruct the jury as to the law applicable to the cause as disclosed by the evidence is without merit.
9. It affords no reason for granting a new trial that in charging on the presumption of innocence the court did not instruct the jury that this presumption covered incidents in which the evidence showed that the defendant had participated shortly before the moment of the homicide.
10. It was not erroneous to charge: "You are to say, gentlemen of the jury, from all the evidence in the case, along with the prisoner's statement, where the truth of the case lies."
11. That in the indictment the name of the deceased was given as James Wilson, and in the testimony he was referred to merely as Wilson, or Mr. Wilson, except that his widow as a witness stated that his name was James Henry Wilson, does not present a fatal variance between the allegata and the probata.
12. At the conclusion of the argument, the judge addressed counsel for the accused as follows: Q. "Mr. Ingram, as I understand it you don't claim self-defense?" A. "No, Sir." Q. "But your contentions are, he killed under such circumstances as would make him guilty of manslaughter?" A. "That is correct — Yes, Sir." The court was on that account alone justified in charging the jury as follows: "The defendant contends, gentlemen of the jury, and his lawyer here in your presence, and before you, has stated to you and the court that he does not claim self-defense for his client, but that he did it in such a way and under such circumstances as would make him guilty of manslaughter, and that therefore manslaughter is all that he is guilty of."
13. The jury were authorized under the evidence to find the defendant guilty of murder.
While there may be some slight conflicts in the evidence, the jury were fully authorized to find the following to be the truth of the case: The accused was in a restaurant, drunk and cursing, with an open knife in his hand. The proprietress ordered him out, and he left in company with another man. The two were standing on the outside "talking awful stuff." Wilson and his wife, after having left a church service and a brief visit to a relative, stopped by a cafe on their way home. As they left the place and were passing by the accused and his companion, Wilson asked the accused to hush. The accused continued to "cuss." Wilson again asked him to desist until he could get his wife by. He did not hush, but used vulgar and obscene language which is unfit to print. The words were of a most obscene character. As was observed in Chaplinsky v. New Hampshire,
There is no obligation which a lawyer owes to his client which would justify him in trifling with the court; none which makes it his duty to urge a proposition of law which he knows to be unsound. One of the special duties of attorneys is "never to seek to mislead the judges or juries by any artifice or false statement of the law." Code, § 9-601. They are officers of court, priests in the temple of justice, whose high mission is to assist in the administration of justice under the law. The same considerations which should restrain them from obstructing it by filing motions for new trial when there is no reason for supposing that a new trial will be granted, or to indulge in other dilatory tactics for the sole purpose of delaying the administration of justice (Fambles v. State,
In Thompson v. State,
Nor is the verdict wrong for the reason that, although the indictment charges that James Wilson was murdered, the person killed was referred to in the testimony as James Henry Wilson, or merely "Mr. Wilson." It was not shown that there were two James Wilsons. The law does not regard the middle name or initial of a person as material unless it be shown that there are two persons of the same first name and surname. Hicks v. Riley,
The verdict was supported by the evidence, and it was not erroneous to refuse a new trial.
Judgment affirmed. All the Justices concur.