130 Ga. 343 | Ga. | 1908
Fletcher Burley was convicted of the murder of Tom Walker; he made a motion for a new trial, which was overruled, and he brings error. There was evidence from which the jury could find these facts: The homicide occurred at a hall where a dance party was in progress. The deceased, soon after entering the hall, seated himself beside one Mary Seals. The defendant was this woman’s escort to the dance hall. The defendant, accompanied by one of his intimate associates, approached the deceased and demanded “what he was doing by his girl,” and without provocation attacked the deceased with knives. Others joined
The defendant’s counsel also invoked an instruction on the law of voluntary manslaughter. The court’s charge on this subject was not technically accurate. In explaining the elements of this-grade of homicide, his honor charged that a “serious personal injury,” as used in the Penal Code, §65, meant “a bodily injury, and not a personal affront or personal Wrong; an injury that may deprive of life, and which must be prevented by a resistance of like sort.” This language was taken from the opinion in the case of Thompson v. State, 24 Ga. 297 ; but, as has been frequently observed,, not every expression .found in an opinion by the Supreme Court may be given in charge. In that ease the court was demonstrating that a serious personal injury as used in the statute meant a bodily injury; the gravity or seriousness of the injury was not up for decision. The inaccuracy is patent. Where an attempt is made by' the person killed to commit a serious personal injury on the person killing, it is not essential to reduce the grade of homicide to-voluntary manslaughter that the attempted injury shall be one that may deprive of life. But the error was harmless. This is. so for the reason that neither the evidence nor the prisoner’s.
Judgment affirmed.