24 S.E.2d 312 | Ga. | 1943
1. The court is not bound to charge in the exact language of the request; and a new trial will not be granted for refusing to charge as requested, when the charge given substantially covers the request, which request was not more specific in its application than was the charge as given.
2. A request to charge that contains two principles, one relating to the law of justifiable homicide and the other to the law of voluntary manslaughter, and when these two principles are commingled and confused in the same sentence, it is not a proper request.
3. (a) Code § 26-1014 is applicable to homicide cases where there is mutual combat, and defines the rules to govern the jury in determining under what circumstances the accused may take the life of another and be justified; and an objection to a charge on this subject, alleging that "said charge, being embraced within that portion of the charge with mutual combat, was misleading and confusing in that it dealt with justifiable homicide and not mutual combat as related to murder or manslaughter," is without merit.
(b) A slip of the tongue of the judge in charging the jury, where he used the word "shoot" instead of "cut or stab," which could not have misled or confused the jury, is not reversible error.
4. In a homicide case the court is not required to charge the law in reference to the character of deceased for violence, in the absence of a proper request so to charge.
5. The verdict was supported by the evidence.
The evidence presents two separate and distinct lines of testimony. The witnesses for the State relate a set of facts that show an unprovoked killing, and the testimony of the witnesses for the accused is equally positive in presenting a case of justifiable homicide.
The killing occurred in the business section of Griffin on a Saturday afternoon. Witnesses for the State testified that the accused, without any warning, approached the deceased "on her toes," a distance of ten steps from around a corner, and stabbed deceased while she was standing talking to her (deceased's) husband, and holding her baby in her arms. Witnesses for the accused testified that while she was walking down the street on the way to her work, the deceased, without warning, struck accused with a broom and knocked her down twice; that deceased had a knife, and after accused had been knocked down the second time, deceased got upon her and tried to cut her; and that while down accused opened her own knife and stabbed deceased.
The evidence discloses that about twenty minutes before the homicide there had been a previous difficulty between accused and deceased, and the testimony relating to this incident is equally at variance as the testimony relating to the homicide. Witnesses for the State testified that the accused without provocation struck at deceased with a knife, and a few minutes later, when they met at a different place before the homicide, threatened to kill her. Witnesses for the accused testified that this previous difficulty was an effort on the part of deceased to injure accused, and that deceased made an assault upon accused with a knife, and accused ran away in order to avoid being cut; and that deceased threatened to kill accused, which threat was communicated to accused.
1. The first special ground of the motion complains of error in the failure of the trial judge, on request, to give in charge to the jury the following: "Although mere threats are insufficient to justify a killing as in self-defense, if the jury believe that prior to the homicide *432
deceased made threats of a violent nature against the defendant, and the evidence leaves the jury in doubt as to what the acts of the deceased were at the time of the homicide, or as to what defendant might properly have apprehended in respect to the intentions of the deceased, the jury are entitled to consider the threats in connection with the other evidence, in determining who was the aggressor, and in determining what apprehensions might reasonably arise in the mind of the defendant from the conduct of the deceased." In Alexander v. State,
2. The accused, in ground 4, alleges error in the court's failing to charge, on request, the following: "She would be justifiable, whether in fact there was any real danger or not; or if the circumstances *433 proved were sufficient to excite the fears of a reasonable person that a serious bodily injury, less than a felony and greater than a slight injury, was about to be inflicted on her, by the deceased, and she acted under the influence of those fears in doing the killing, and not in a spirit of revenge, the killing would be reduced from murder to manslaughter, whether the defendant was in actual danger at the time or not." This is not a correct statement of the law of homicide. The first phrase, "she would be justifiable, whether in fact there was any real danger or not," is a rule that applies only to the law of justifiable homicide. The balance of the request relates only to the law of voluntary manslaughter. These two principles are commingled and confused in the same sentence, and would have been an incorrect statement of the law.
3. (a) In grounds 5 and 6 the accused alleges error by reason of the court having charged the jury as follows: "Before the slayer can be justified, it must appear that he acted without malice, not in a spirit of revenge, that the deceased was the assailant, that in order to save his own life it was necessary to kill this adversary, or that he was under the pressure of other equivalent circumstances. He can not avoid the fearful responsibility of guilt by the bare fear or apprehension of danger; the danger must be urgent and pressing at the time. He must decide the momentous question with reference to his accountability to the law at the time, and by the exercise of the same mental and moral faculties which he employed to shoot." This excerpt of the charge was taken from Roberts v. State,
(b) In the foregoing charge the court used the word "shoot" instead of "cut" or "stab." Inasmuch as the indictment alleged that the deceased was killed by cutting and stabbing, and there was no evidence in reference to any shooting, the jury could not have been misled by the use of the word "shoot" in this portion of the charge. Such a slip of the tongue could not have misled the jury, and is not ground for a new trial. Harris v. State,
4. Ground 7 of the motion alleges error in the failure of the court to charge, without request, on the subject of the character of deceased for violence. This was not error. Tillman v.State,
5. The jury were authorized to adopt either version of this case, but they believed the witnesses for the State.
Judgment affirmed. All the Justices concur, except Reid, C.J., absent because of illness.