16 Ga. App. 280 | Ga. Ct. App. | 1915
The first and second groilnds of the amendment to the motion for a new trial complain that the court erred in giving-in charge to the jury section 65 of the Penal Code, relative to voluntary manslaughter (except the part relating to provocation bywords, threats, menaces, etc.,, which was omitted), and in instructing them what the form of their verdict should be if they found the defendant guilty of manslaughter; the alleged error being that the evidence as a whole did not warrant any reference whatever to the law of voluntary manslaughter.
The killing occurred on Sunday at a negro camp-ground, where, one witness declares, there were present more than a thousand people. Making due allowance for exaggeration, it is evident there were a large number of negroes at this meeting, some drawn there no doubt, by religious fervor, some by their gr'egarious instincts alone, and still others by the opportunities always afforded, at such gatherings to stir up trouble, settle old grudges, and render themselves, by noise and swagger, or even by violence and brutality, not only detestable to every law-abiding person present, but heroic and admirable in the opinion of the large and ignorant majority. Among others who, like Satan, “came also among them” (Job, 1, 6) were the slayer and his victim; and from some of the testimony, as well as from the statement of the accused, it appears they were both charged with satanic impulses when they arrived .on the scene; for it is evident, from the statement of the accused, that he had with sufficient cause cherished a grudge against the deceased for about two years; and, from the conduct of the deceased as depicted by some of the witnesses, it may be inferred that he was filled to overflowing with black rage against the defendant, even before they encountered each other on this day so fatal to him. One of the witnesses for the State (who testified that he was a trustee of the church where the homicide occurred, and wás an “officer” and “marshal” there on tbit day) stated that he saw the defendant a few minutes before the shooting, and that he was down at the “preacher’s tent,” and left Will Hall, the deceased, “down
The testimony of a witness for the defense showed that the deceased came up to the defendant, abused and cursed him, and told him that he (the defendant) had a pistol “but was afraid to use it;” and when the defendant replied that he was not afraid to use it, “they both started for their pistols, and Eob [the defendant] got his out first and shot him.” The deceased “never did get his out until after Eob had done shot him, and after he shot him he had it in his hand.” This witness further stated that both started to get their pistols out, but the defendant got his first, as he had his coat on his arm “and brought his pistol out from under his arm;” that the shirt of the deceased was open in front, and his pistol “was down in his shirt bosom,” as she saw the handle, and it- appeared as if he “got his hand hung,” and therefore he did not get his weapon out as quickly as the defendant, but “he had it in his hand when he fell.” There was testimony from other witnesses
The action of the deceased on the occasion of the homicide, in putting his hand on his pistol in his bosom, taken in connection
It was entirely within the’prerogative of the jury (Acts 1899, p. 41; Penal Code of 1910, § 65) to say that a period of time, no matter how long, was too short for reason to have reasserted its dominion under the circumstances of provocation shown in this particular case. In the ease of Hightower v. State, 14 Ga. App. 248 (80 S. E. 684), Russell, C. J., speaking for the court, said: “There are sometimes circumstances which justly arouse an indignation which glows more ruddily with the passage of time (a passion which is not really ‘irresistible,’ as defined by law, until it passes from red to white heat), and by every rule of reason, as well as by the legislative enactment of 1899, the sufficiency of ‘cooling time’ should be submitted to the jury; for the jury is com
In the 3d ground of the amendment to the motion for a new trial it is complained that the judge erred in failing to charge, in connection with the instruction given as to the law of voluntary manslaughter, that “provocation by words, threats, menaces, or contemptuous gestures shall in no case be sufficient to free the person killing from the guilt and crime of murder;” or, in other words, that the judge erred in omitting these words when giving in charge to the jury section 65 of the Penal Code. This is á somewhat unusual complaint. Generally error is assigned in cases of this character because the trial judge gave in charge this part of section 65 without proper qualification, and it is somewhat refreshing to find an exception based not on the inclusion, but the exclusion, of this part of that section. It appears to be so difficult to instruct the jury, to the satisfaction of counsel for the accused, as to provocation by words, threats, menaces, etc., or so that no proper exception can be urged against such instruction, that this court said in Holland v. State, 3 Ga. App. 467 (60 S. E. 205), that “this phase of criminal law as codified is couched in such inapt language that in most cases the trial judge may safely run his pen through these words, when charging the manslaughter section.” Again, in Garner v. State, 6 Ga. App. 788 (65 S. E. 842), it was said: “It is not usually a proper charge that 'provocation by words, threats, menaces, or contemptuous gestures shall in no ease be sufficient to free the person killing from the guilt and crime of murder.’ This is especially true where there is a theory of the evidence on which the jury might find that the person killing acted in apparent self-defense, on account of a reasonable fear aroused in his mind by threats, menaces, etc., taken in connection with'other facts in the case.” See, in this connection, Cumming v. State, 99 Ga. 662 (37 S. E. 177). Often when this part of section 65 is charged excep
The 4th and last ground of the amendment to the motion for a new trial alleges that the court erred in charging that “if the guilt of the accused is shown to the satisfaction of the jury, they are authorized, to convict him, regardless of any good character on his part, but the jury are authorized to consider his good character, if it has been shown.” The error complained of is that this charge fails to instruct the jury as to the amount of consideration which proof of good character should have at their hands. The exception does not complain that the charge given was incorrect or misleading; and we may not consider an exception taken to a correct charge, merely because the judge failed to give some additional charge on the subject, where no proper written request was made. However, the point raised by this exception appears to be controlled by the following cases: Maddox v. State, 9 Ga. App. 448 (71 S. E. 498); Mosley v. State, 11 Ga. App. 303 (75 S. E. 144); Keys v. State, 112 Ga. 392 (5), 397 (37 S. E. 762, 81 Am. St. E. 63); Scott v. State, 137 Ga. 337 (73 S. E. 575).
Judgment affirmed.