English v. State
95 Ga. 123
Ga.
1894
Check Treatment
Atkinson, Justice.

1. The defendants were jointly indicted for the offense of murder, were found guilty, and made a motion for a new trial upon many grounds, all of which appear in the official report of this case. A number of exceptions were taken to the charge of the court and error assigned thereon, but upon a careful examination of the full charge, which comes up in the record, we are constrained to the opinion that, save as to that portion of the charge to which we will hereafter refer, whatever of verbal inaccuracies may seem to appear in these fragments of the charge, when they are considered in the light of the entire instruction to the jury, the same are free from substantial error.

2. One ground of the motion for a new trial assigns error upon the following charge of the court: “I charge you that it could neither justify nor reduce the killing, unless Waldrep made the assault and the assault was of a character to put the other’s life in imminent peril at the time, or it appeared to him to do so.” We have carefully examined the general charge .to ascertain whether thereby the judge in any manner qualified this instrue*128tion, but we find that he did not, so that in grading the degree of the homicide this is made the rule of decision by which the jury is to be guided in its deliberations. "Was this a correct rule ? If not, let us inquire wherein consists its error. In order to justify a homicide, it must appear that at the time of the killing the circumstances were such as to impress a reasonably courageous man with the belief that at the hands of the deceased he stood in imminent peril of his life, or of the infliction upon him of injuries amounting to a felony. Such degree of peril, however, is not necessary to reduce the offense from mui’der to voluntary manslaughter. If the deceased should commit an assault or battery upon the' slayer, though such attempted or actual violence should not in any way imperil his life nor amount to the commission of a felony upon his person, such assault or such battery would be sufficient to reduce the killing to voluntary manslaughter, provided the jury should believe it to be of such a character as to excite in the person assaulted that violent sudden impulse of passion supposed to be irresistible, and further, that the fatal shot was fired under the inspiration of such overmastering passion, and not in a spirit of revenge. Whatever may have been the real truth of the transaction, the statements of the accused presented such a state of facts that, if the jury had believed them true, they could have found that the deceased had made an assault upon the slayer, and could have inferred in the slayer the frame of mind which would have reduced the degree of his guilt to the lower grade of homicide. Yet, by the instruction now under consideration, they are charged that in no event could an assault by the person slain have the effect to reduce the'grade of the offense committed by the slayer, unless such assault was of a character to put the life of his adversary in imminent peril. This is not the standard fixed by the law. According to the *129standard fixed by the court, the slayer would be justified under the law; and to require a jury to find a homicide justifiable before they would be authorized to reduce the degree of homicide from murder to voluntary manslaughter, is to demand of the defendant a higher degree of exculpatory evidence than the law requires. He satisfies the law that he is entitled to have his ofiense graded as voluntary manslaughter, without showing that his life was imperiled; he may to that point satisfy the law by showing the commission upon him of a battery not amounting to a felony. But he can meet the requirement of this instruction by the court and have his offense graded as voluntary manslaughter, only by showing the commission upon him of such a battery as places him in imminent danger of his life. This was the final paragraph in the charge of the court. It was th® parting injunction to the jury as they retired to their room. There was nothing said by the court to neutralize its effect. It was directly to the point, and may have had a controlling influence in moulding the verdict; and giving as it did an erroneous rule for the guidance of the jury upon a vital point in the case, we are constrained to award a new trial.

The verdict was excepted to as being contrary to the evidence, but as the cause goes back to be retried, we forbear to make any observations upon that branch of the case. Judgment■ reversed.