Cloud v. State

81 Ga. 444 | Ga. | 1888

Blandford, Justice.

Cloud was indicted for murder, and was found guilty of voluntary manslaughter. The main allegation of error is, that the court refused to charge upon section 4384 of the code, as requested by counsel for the defendant ; which section is as follows : “ All other instances which stand upon the same footing of reason and justice as those enumerated, shall be j ustifiable homicide.” The instances enumerated are those contained in the preceding sections,'and are eases of justifiable homicide. The court was requested to charge the jury that “ if the defendant killed the deceased for the purpose of preventing him from having criminal intercourse with the defendant’s wife, and if the killing was then and there necessary to prevent the deceased from accomplishing his purpose to have criminal intercourse with the defendant’s wife, then it would be for you to say whether this would be one of those instances standing upon the ■.same footing of reason and justice as those enumerated in sections 4831, 4332 and 4333 of the code of Georgia; .and if you find such to he the case, then you would be ¡authorized to find the killing to be a justifiable homicide, and the defendant not guilty.” The court refused to give in charge anything at all upon section 4334 of the code, holding the same inapplicable to the case. The evidence shows that the accused had frequently appealed to the deceased to let his wife alone. This was proved by testimony other than the defendant’s statement. And it appears that the deceased persistently followed up the defendant’s wife ; and on the occasion of .the shooting, the deceased was seen a short time before he was killed, with the wife of the defendant on his arm, going up a dark alley. This section of the code (4334) certainly is intended to have some effect; and if it is to have any effect at all, the court should charge the jury upon it, as well as upon the other instances of justifiable homicide; and it should be left to the jury to say whether or not the facts of the case on trial stand upon the same footing of reason and justice as those enumerated in the code. The court might instruct the jury what is a like instance of reason and justice; and it is for the jury to say whether or not the case on trial stands on the same footing with the cases enumerated. ¥e think the charge requested in this case was proper and should have been given. It was the same thing charged in the case of Hill vs. The State, 64 Ga. 453; and this court held that it was a proper charge in that case. This request to charge was doubtless taken from the charge of Judge Hillyer, which was affirmed in the case just cited.

"We do not think that any man is justifiable in killing another who has committed adultery with his wife, after the adultery has been committed; for that would seem to be killing in a spirit of revenge, which would make it murder. The killing must be done to prevent the adultery, and there must be a necessity for it. Thfe taking of human life must be necessary to prevent this great wrong upon the peace and happiness of families, in order to justify the homicide. The law is, that the killing must be to prevent the adultery, and it is only in such case that the killing would be justified.

The judgment of the court below is reversed, because of the refusal to give in charge the request of the defendant as above set out.

Judgment reversed.