167 Ga. 318 | Ga. | 1928
Lead Opinion
The court charged the jury as follows: “It is necessary, in the determination of your verdict in this case, for you to determine the character of the instrument used which resulted in the death of the deceased. If you determine that the instrument used, in the manner in which it was used upon that occasion, was a weapon likely to produce death, and that from the use of the weapon in the manner in which it was used the death of the deceased ensued, the law, from the use of the weapon in
In four grounds of the motion for new trial the movant complains of the admission of testimony over “timely objection.” These grounds also State the movant’s reasons for his contention that the court’s rulings were error. These grounds are incomplete, because they fail to state what ground of objection was urged at the time the testimony was offered.
Two grounds of the motion assign error upon the court’s charge on the defendant’s statement, and on failure to charge, in connection therewith, “that the jury might believe the defendant’s statement in preference to the sworn testimony in the case if they saw fit, or that they might disbelieve it if they saw fit, or that they might believe it in whole or in part, — that they might believe part of it and reject or disbelieve the remainder.” The charge of the court on the subject of the prisoner’s statement was in compliance with the Penal Code (1910), § 1036. If the movant desired the elaboration stated above, the same should have been duly requested in writing.
No ruling is made upon the sufficiency of the evidence, because the ease is remanded for a new trial.
Judgment reversed.
Dissenting Opinion
dissenting. One ground of the motion for a new trial complains that the court instructed the jury as follows: “It is necessary, in the determination'of your verdict in this case, for you to determine the character of the instrument used which resulted in the death of the deceased. If you determine that the instrument used, in the manner in which it was used upon that occasion, was a weapon likely to produce death, and that from the use of the weapon in the manner in which it was used the death of the deceased ensued, the law, from the use of the weapon in such manner, would imply an intent to kill.” This excerpt states a correct abstract principle. Flannigan v. State, 135 Ga. 221 (4) (69 S. E. 171); Boone v. State, 145 Ga. 37 (2), 39 (88 S. E. 558). Therefore the instruction was not “contrary to law.” It is not error for the other reasons assigned, to wit: that it was “an expression of opinion of the court;” that it “antici
It is argued that this charge took away from the consideration of the jury the contention of the defendant, as made in his statement, that the homicide was due to an accident. In Vaughn v. State, 88 Ga. 731 (16 S. E. 64), exception was taken to a charge of the court in several respects, one of which was as follows: “Where the State proves the fact of the killing by the defendant, the law presumes that the killing was murder, and that it then becomes incumbent on the defendant to show to the jury by evidence that it was either justifiable homicide or some grade of homicide below murder.” In the Vaughn case, as in this case, there was nothing to contradict the State’s evidence, except the statement of the accused; but it was argued that the charge just quoted was error, because it took away the contention made by the accused in his statement. Chief Justice Bleckley, speaking for the court, said: “The jury trying a criminal case are sworn to give a true verdict according to evidence. It is important for them not to confound the prisoner’s statement with the evidence or the evidence with the statement. The statute allows them to give the statement such force as they think proper, and even to believe
The court fairly and fully instructed the jury on the law of accident and on the defendant’s statement. The homicide occurred in December, 1918. The accused fled, and was not apprehended until February, 1928, in the State of Florida. His conviction resulted in a sentence as provided by law.