183 Ga. 822 | Ga. | 1937
Tom Booker was convicted at the August term, 1936, of the superior court of Wilkes County, of the offense of murder, with a recommendation of mercy. The evidence shows that the deceased, H. A. Sturdivant, chief of police of the City of Washington, Georgia, and S. C. Hopkins, the night police chief of that city, in response to a telephone call from Augusta, Georgia, late in the afternoon of the 4th of July, were on the lookout for a four-door Plymouth sedan, stolen on the 3d of July in Augusta from Marietta Jones. Later in the afternoon of the 4th of July, a car was seen by Sturdivant and Hopkins, and was overtaken by them on Liberty Street in the City of Washington. When first seen by these officers, the defendant was driving the ear, a Plymouth automobile. The officers overtook it, crowded it to a curve, and it stopped. The officers left the automobile in which they were riding, and Chief Sturdivant went to the side of the car on which the driver (defendant) was seated, and opened the door. Officer Hopkins went to the other side of the car. At that time the officers had on their regular uniforms and police caps. On the cap of Sturdivant was embroidered the words “Chief of Police.” The caps could be seen by the defendant. The officers told the defendant to get out. He refused to do so. Officer Hopkins took his handcuffs from his belt and tried to handcuff
The excerpt from the charge to the jury, referred to in paragraph 6 of the syllabus is as follows: “However, if you should believe under the evidence, facts, and circumstances of this case, including the defendant’s statement, that it was a sudden killing, that he had no intention to do so, or, as already defined to you, that the killing of Mr. H. A. Sturdivant was with an instrument that in the manner used at the time was an instrument likely to kill, but a killing under circumstances to justify the excitement of passion, and to exclude all idea of deliberation or malice, either express or implied, why in that event it would be voluntary manslaughter.” The exception is as follows: “The above charge as a whole is very confusing. It is an incorrect statement of the law, and in all probability was misleading to the jury and injuri
The brief of the State Department of Law contends that this excerpt should be construed in connection with the charge as a whole, bearing in mind that the court had previously instructed the jury in the language of the Code on both voluntary and involuntary manslaughter, and that although “the particular portion of the charge complained of may have been inapt, and perhaps erroneous, nevertheless, in view of the fact that the jury found the defendant guilty of murder rather than voluntary manslaughter, such charge, if erroneous, was harmless.” There is difficulty in adopting this reply as adequate to meet the contention of the plaintiff in error, since the basis of the complaint is that the charge by its language may have precluded the lesser verdict of
As has already been stated, before the use of the language excepted to, the judge had given in charge the law of voluntary manslaughter, in this language: '“I charge you, gentlemen, that voluntary manslaughter is the intentional killing of a human being, or the killing of a human being by the intentional use of an instrument that in the manner that it is used at the time is likely to kill, but a killing under circumstances to justify the excitement of passion, and to exclude all idea of deliberation or malice, either express or implied.” The judge followed this by giving the law
Judgment affirmed.