Biggs v. State

| Ga. | Jan 15, 1860

— Lumpkin J.

By the Court.

delivering the opinion.

[1.] Ought the testimony of George A. Oates, as to the general character of Mrs; Biggs for virtue and chastity, to have been rejected ?

Her reputation in this respect had been implicated both by the conduct and evidence of Eleazer M. Parish. And if she was the woman he took her to be, the conduct of her husband would have been less justifiable in resorting to the means he did, to rescue and protect her from insult and importunity.» We hold, therefore, that the proof should have been received.

[2.] The 9th charge given by the presiding Judge to the jury, was in these words: “ That although the shooting at another, might, if it resulted in death, be justifiable homicide, yet if death did not ensue, it would be a crime, under the Act of 1856, unless it were done in self-defence.”

Such we concede is the letter of the 3d section of the Act of 1856. It provides, that from and after its passage, that “ any person who shall be guilty of the offence of shooting at another, or at any slave or free person of color, except in his own defence, with a gun, pistol, or other instrument of the like kind, shall, on conviction, be punished by a fine not exceeding one thousand dollars, and imprisoned not less than twelve months, or confinement in the penitentiary at the discretion of the Court.” Pamphlet Acts 1855-56, p. 265.

By the penal code, it is justifiable homicide to kill another, not only in self-defence, but in the defence of one’s habitation, property or family, against one who manifestly intends to commit a felony on either. Can it be believed that the Legislature intended, that if a husband or father shoots at one who is attempting to commit a rape on his wife or daughter, and fails to kill him, he is liable to be convicted under this Act, and imprisoned in the penitentiary ? Never, we apprehend. The effects of such a construction would be too monstrous. We must deviate then from the letter of the law, seeing that if literally interpreted, it leads to such absurd consequences, upon the same principle that it was decided, after long debate, that the Bolognian law, which 'enacted that whoever drew blood in the streets should be punished with the utmost severity, did not extend to the surgeon who opened the vein of a person that fell down in the street in a fit.

If it be justifiable homicide to shoot down a burglar who forcibly invades your house, with intent to commit a felony, as it undoubtedly is, and yet if you fail to kill him, you subject yourself to the penalty of the Act of 1856, the title of the statute should be amended. It should be “ An Act to encourage good shooting.” And yet it would seem to be passed for the purpose of preventing shooting altogether, except in cases of self-defence.

[3.] His Honor, the presiding Judge, charged the jury, “ that under no circumstances of aggravation, however gross and direct, would a man be justifiable in taking the life of another, who attempts the seduction of his wife.”

This instruction brings up broadly the meaning of the 16th section of the 4th division of the penal code. After treating of the various grades of homicide, murder, manslaughter — voluntary and involuntary and justifiable — it is provided that “ all other instances which stand upon the same footing of reason and justice, as those enumerated, shall be justifiable homicide.”

What is the meaning of this section ? It signifies something. And it is the duty of the Courts to give it effect. It has been suggested, that to bring cases within this provision, they must be accompanied with force. But has theLegislature so limited it ? Is it not more reasonable to suppose, that it was their purpose to clothe the juries in criminal cases, in which they are made the judges of the law as well as the facts, with large discretionary powers over this class of of-fences ; and leave it with them to find whether the particular instance stands on the same footing 'of reason and justice as the cases of justifiable homicide specified in the code? Has an American jury ever convicted a husband or father of murder or manslaughter, for killing the seducer of his wife or daughter ? And with this exceedingly broad and comprehensive enactment standing on our statute book, is it just to juries to brand them with perjury for rendering such verdicts in this State ? Is it not their right to determine whether, in reason or justice, it is not as justifiable in the sight of Heaven and earth, to slay the murderer of the peace and respectability of a family, as one who forcibly attacks habitation and property ? What is the annihilation of houses or chattels by fire and faggot, compared with the destruction of female innocence; robbing woman of that priceless jewel, which leaves her a blasted ruin, with the mournful motto inscribed upon its frontals, “ thy glory is departed ?” Our sacked habitations may be rebuilt, but who shall repair this moral desolation ? How many has it sent suddenly, with unbearable sorrow, to their graves ?

In what has society a deeper concern than in the protection of female purity, and the marriage relation ? The wife cannot surrender herself to another. It is treason against the conjugal rights. Dirty dollars will not compensate for a breachof the nuptial vow. And if the wife is too weak to save herself, is it not the privilege of the jury to say whether the strong arm of the husband may not interpose, to shield and defend her from pollution ?

[4.] Finally, the Court charged the jury, “ that whatever may have occured on the night previous to the difficulty at the breakfast table, it could not amount to a justification or excuse for the act of shooting, the morning after the difficulty.”

And this instruction was based, no doubt, upon the idea, that sufficient time had elapsed for passion to subside, and for reason to resume her sway.

In many cases this doctrine is true, but we cannot think it a sound proposition, under the facts and circumstances which surrounded these parties. The husband had heard and seen the personal indignity offered his wife the night before. He permitted Parish to escape, with threats of punishment should he remain in the city. The very next morning, at the breakfast table, he unblushingly resumes his seat in the immediate neighborhood of his intended victim. Was it human to keep cool in such a situation ? To see the man who had attempted to desecrate the family altar, the night before, seat himself within two chairs of his wife! And was it not right and proper, in order to account for his violence, to give in proof to the jury, the occurrences of the preceding evening? To shut out the scene which transpired in the bed-chamber, is to deprive the jury of the power of appreciating the transport of passion kindled in the bosom of Biggs by the presence of Parish.

With our view of the law, we feel constrained to award a new trial in this case.

Judgment reversed.