154 Ga. 716 | Ga. | 1922
Lead Opinion
The charge of the court complained of in the first ground of the amendment to the motion for a new trial, which appears in full in the first headnote, in substance instructed the jury, first, that if the defendant did not participate in the killing, if he did not go there with' the common intent, nor in conspiracy with his brother, to kill or murder the deceased, and if he had nothing to do with it, then he would not be guilty, and the jury should so find; but, second, that if the jury should believe from the evi
The second portion instructed the jury that if they believed from the evidence, although they should believe that the defendant did not shoot, that the defendant and his brother with a common intent took the life of the- deceased, with malice, as charged in the indictment, it would be immaterial whether the defendant had a pistol, or shot or not, if he went to the scene of the homicide with such common intent to kill and murder the deceased. It is alleged that this charge is contradictory and tended to confuse the jury. We see no such destructive or obscuring contradiction between the two portions as to make the second section destroy or darken the first section, and thus confuse and mislead the jury.
It is next urged that this instruction is an erroneous statement. The error insisted upon is, that this charge left the jury to act upon their belief, without instructing them that such common intent and purpose must be shown by the evidence beyond a reasonable doubt. Verdicts are always based upon the belief of juries. The judge, elsewhere in his charge, told the jury, that the guilt of the accused must be proved beyond a reasonable doubt. He did not have to repeat this with each separate instruction.
It is next insisted that this charge is error, because the court instructed the jury that if the defendant went with his brother to murder the deceased, he would be guilty whether the defendant aided or abetted his brother in the actual commission of the murder. Suffice it to say that the judge did not so charge the jury. He did not instruct the jury that the presence of the defendant and the existence of such common intent would make him guilty. What
The charge complained of in the second ground of the amendment to the motion for a new trial, which is quoted in full in the second headnote, is not erroneous for any of the reasons assigned. The Justices are unanimously of the opinion that the law of voluntary manslaughter was not involved under the facts of the case; and that where voluntary manslaughter is not involved under the proof, an instruction thereon should not be given. They further agree, in accordance with a long line of decisions, that where the defendant was not convicted of voluntary manslaughter, and under the evidence voluntary manslaughter was not involved, any errors committed by the court in charging upon that subject are not cause for the grant of a new trial. The charge, however, was not erroneous as against the defendant, but was favorable to him. The'Justices are a unit in sustaining the trial court on every assignment of error save that in the second ground of the amendment to the motion for a new trial. An examination of that ground of the motion will show that there is no complaint and no error is assigned on the ground that section 73 of the Penal Code was given in charge. The rule is unchallenged that a judgment will not be reversed on a ground not made in the motion for a new trial. In the words of the record, “ Movant respectfully insists that the charge of the court on the question of considering the law of voluntary manslaughter, and in this connection, [italics ours] the law of mutual combat, was erroneous.” Then follows the excerpt from the charge of the court of which complaint is made. This charge is set out in full in the second headnote. In this charge it will be observed that the court instructed the jury to determine from the evidence whether or not there was mutual combat, defined the meaning of mutual combat, and instructed the jury that if they should find a mutual combat and that the accused was not justifiable under the evidence, then they might consider, under the evidence, the question of voluntary manslaugh
The third headnote does not require elaboration.
To any unbiased mind the facts as shown by the record show a case of murder both shocking and brutal. The deceased was an old man sixty-five to seventy years of age, an officer of the law, a deputy sheriff. The officer represented the law of a sovereign State. At the time of the homicide he was at a railway station for the purpose of meeting his daughter and her small child. Throughout the evidence no other motive appears for the presence of the deceased, save to meet the daughter and her child; and at the time the difficulty began he was discussing with his daughter an injury to the child’s arm. The defendant, together with his brother, arrived at the station, Durham, on the same train with the daughter. The defendant was drunk, had conducted himself in a manner obnoxious to more than one person on the train, where he was armed with a blue steel pistol. The conductor of the train narrowly escaped a difficulty with him, and his brother threatened to shoot the conductor. The accused drew a pistol on a passenger because the latter refused to take a proffered drink of whisky. On arriving at Durham the defendant approached the deceased and said to him, “You have a warrant for us, have you? Now, God damn you, serve it if you think you can.” The evidence is substantially without conflict that the difficulty was started by the defendant and his brother in approaching the deceased .while they were intoxicated, armed, and in the mood for a difficulty. When he tried to reason with them they defied him, and the defendant assaulted him. Even the brother of this defendant, jointly indicted with him, testified to the truth of this fact. The only variation is found in the statement of the accused, and he described the beginning of the difficulty by saying that “ me and the deceased got into it, and I started off from the deceased the best I remember, and when I did that he gave me a shove in the back, and I slapped at him, and then deceased began to shoot.” According to the evidence, as soon as the old man had received his death wounds the defendant or Frank [Kalph?] Baker, witness did not know which, said, “ How do you like that, is that hot enough for you, or do you want some more?” During the conversation that
The case is in some respects like that of Boyd v. State, 17 Ga. 194, but the facts show less mitigation than in the Boyd case. Boyd killed a deputy sheriff of Muscogee County. Boyd and another approached the officer and inquired if he had warrants for them. He replied that he had not, but that warrants had been issued, and advised them, if they wished to avoid arrest, to keep on the other side of the river, in Alabama. They promised to do so unless they concluded to come over and surrender. Contrary to this friendly warning on the part of the officer, they returned to Columbus, avowing that they were determined to die rather than be taken. They saw the officer and heard him summon assistance, saying that he would be compelled to arrest them. The officer approached Boyd and companion, saying, “You are my prisoners ; I have a warrant for both of you.” As soon as the officer laid his hand on one of them, the latter drew his pistol and shot the officer. The other accused fired while the officer was falling. This court in its opinion, on page 201, said: “ There is not one mitigating circumstance,” and on page 204: “It would be hard indeed, if, while this young man, in the mild but manly discharge of his duty, is shot down like a dog, his murder should go unavenged by that law whose minister he was. Ministers of justice, while in the execution of their offices, are under the peculiar protection of the law —• a protection founded in wisdom and in every principle of political equity; for without it the public tranquility cannot possibly be maintained or private property secured; nor, in the ordinary course of things, will offenders of any kind be amenable to justice.” In the case now before us the deceased, though an arresting officer, was making no effort to arrest the accused or either of them, nor to in any way molest or disturb their freedom.
Judgment affirmed.
Dissenting Opinion
dissenting. The jury found the defendant, guilty of murder, without recommendation; and he has been sentenced to pay the extreme penalty of the law for this offense. With this result, or the severity and barbarity of the punishment, this court would have nothing to do, if the jury had been given proper instructions upon the law by the trial court for their guidance in reaching the verdict which they rendered; but in a case involving human life, this court should scan with clearer scrutiny errors alleged to have been committed by the trial judge in his instructions to the jury, than in a case of less gravity. The defendant, in the second ground of his amendment to his motion for new trial, complains of the charge of the court which is set out in the second headnote of the opinion in this case. This instruction consists of two branches. The first of these deals with mutual combat. The court left to the jury the determination of the question whether mutual combat was involved under the evidence; and then in
I will deal with the second division of this instruction first. The majority of the court hold “that the law of voluntary manslaughter was not involved under the facts of the case; and that where voluntary manslaughter is not involved under the proof, an instruction thereon should not be given.” So, according to the opinion of the majority of the court, the court below erred in giving in charge to the jury the second division of the instruction complained of. Kelly v. State, 145 Ga. 210 (88 S. E. 822); Hegwood v. State, 12 Ga. App. 566 (77 S. E. 886); Jones v. State, 147 Ga. 356 (94 S. E. 248). But as the defendant was not convicted of voluntary manslaughter, any errors committed by the court in charging or omitting to charge upon voluntary manslaughter will not work the grant of a new trial. I refer to this portion of this instruction simply to call attention to the fact that the majority concede that it is erroneous.
I deal next with the first branch or division of these instructions. The court gave in charge to the jury the law of mutual combat as embraced in the Penal Code (1910), § 73. When mutual combat is not involved under the proof, it is error to charge this principle of law. Lowman v. State, 109 Ga. 501 (34 S. E. 1019); Jordan v. State, 117 Ga. 405 (43 S. E. 747); James v. State, 123 Ga. 548 (2) (51 S. E. 577); McCray v. State, 134 Ga. 416 (13a) (68 S. E. 62, 20 Ann. Cas. 101); Brown v. State, 151 Ga. 497 (107 S. E. 536). The majority of the court do not controvert this principle of law. They can not dispute this law. They do not dispute the fact that the trial judge gave in charge the law of mutual combat. Then how do they escape the conclusion that a new trial should be granted the defendant? The majority assert that “.no error is assigned on the ground that section 73 was given in charge;” and for this reason, in a case involving human life,
But this is not all. Among other exceptions to this charge is this: "(e) Movant respectfully insists that said charge was erroneous and confusing, and that it did confuse the jury, to the prejudice of the defendant.” Here the defendant specifically alleges that this charge was erroneous, confusing, and did confuse the jury to his prejudice. In my opinion, all of these complaints are well founded. The error alleged is that this instruction is erroneous; and the assignment of error is sufficient to require this court, in a case of life and death, to pass upon this ground upon its merits. In a case of such gravity, I can not indulge "in dividing a hair between North and North-west side,” in order to escape the grant of a new trial when substantial and prejudicial