19 Ga. App. 442 | Ga. Ct. App. | 1917
The plaintiff in error was indicted for the offense of murder, and was found guilty of voluntary manslaughter. The case is before this court on exceptions to a judgment denying a motion for a new trial. The killing was the result of a dispute over the possession of a cow and a calf claimed both by the deceased and by his daughter, the wife of the defendant. The deceased went to the home of the defendant for the purpose of carrying away the cow and calf. The wife of the defendant'protested, and an altercation ensued, during which the defendant shot and killed the deceased. The evidence for the State shows a killing without legal justification, while the evidence for the defendant is to the effect that the cow and calf were being taken by force, against the consent of the wife of the defendant, and that at the
1. From the foregoing it is apparent that the only difficulty provoked, from the standpoint of the. State, was the difficulty commenced by the defendant, and which culminated in the unlawful killing of the deceased at a time when the deceased was offering absolutely no resistance to the defendant. From the standpoint of the defendant he was acting, throughout the transaction, in self-defense. The charge quoted above in the first headnote is wholly unwarranted by the facts in the case. Though abstractly correct, a charge not warranted by the evidence should not be given; and this particular charge was harmful to the defendant, under the facts of the case. Teasley v. State, 104 Ga. 738-743 (30 S. E. 938); Books v. State, 119 Ga. 431 (46 S. E. 631); Strickland v. State, 8 Ga. App. 421 (4), 433 (69 S. E. 313).
3. As stated above, the sentence from the charge of the court quoted in the second headnote, considered as an abstract proposition, was not error in this case. Generally, if one provoke a difficulty, he does not thereby necessarily lose the right to defend himself. “Where a battery with a weapon likely to produce death was being committed by the deceased upon the slayer when the mortal blow was given, the fact that he provoked the battery by the use of opprobrious words would not put the slayer in the wrong for
3. Since this case must be retried, we have carefully examined the other assignments of error. None of them are meritorious. It is true that the trial judge, in charging section 72 of the Penal Code of 1910, instructed the jury that the “serious injury” referred to in that section meant a felony. This, under the decision in Freeney v. State, 129 Ga. 759 (4), 766 (59 S. E. 788), was error. The able trial judge, in overruling the motion for a new trial, admits his error. We agree with him, however, that, under the facts of this case, the error was entirely harmless. Indeed, the opinion in the Freeney ease recognizes that, the “serious injury” must be grave in its character and consequences. The decision in Nix v. State, 120 Ga. 162 (47 S. E. 516), is authority for the proposition. that “a case might arise where a trespass upon property
Judgment reversed.