171 Ga. 112 | Ga. | 1930
In addition to tbe facts set out in the first paragraph of the opinion when the former conviction of this defendant was before this court (Fair v. State, 168 Ga. 409, 148 S. E. 144), the following facts are stated from the present record: The accused was again sentenced to death by electrocution. A motion for new trial upon the general grounds was filed, which was amended by two special grounds which allege:
(1) That it was error to refuse to charge the jury as follows, as requested in writing: “Involuntary manslaughter shall consist in the killing of a human being without any intention to do so, but in the commission of an unlawful act, or a lawful act which probably might produce such a consequence, in an unlawful manner ; provided, that where such involuntary killing shall happen in the commission of an unlawful act which, in its consequences, naturally tends to destroy the life of a human being, or is committed in the prosecution of a riotous intent, or of a crime punishable by death or confinement in the penitentiary, the offense shall be deemed and.adjudged to be murder. Thé defendant contends that there was no intention whatever on his part to kill the deceased, and that he did not intentionally fire the shots that took the life of the deceased. If you believe this contention of the defendant to be true, or if you have a reasonable doubt that he intentionally fired the fatal shots, you will further look to the evidence and determine whether or not the defendant was committing an unlawful act at the time the deceased received the wounds that caused his death. In this connection, gentlemen of the jury, I
(2) That it was error to charge the jury as follows: “In view of comments of. defendant’s counsel on failure of the State to offer in evidence any dying declaration of the deceased, I should charge you that no such statement of the deceased, if one was made by the deceased after he went to the hospital, if he did go there, could have been offered in evidence and admitted as a dying declaration as to the cause of his death and the person who killed .him,
The motion was overruled, and the defendant excepted.
The verdict is supported by evidence.
Only the two special grounds of the motion for new trial are argued. The reason is not far to find. While no insistence is made upon the general grounds in argument of counsel, Fair admitted that the shot from the pistol in his hands caused the death of McDaniel. The whole case turns upon the intention or lack of intention in the mind of the slayer at the time the shot was fired. For this reason the plaintiff in error calls special attention to the request to charge that was refused. Had the request been more concretely applied to the facts, it might have been error to refuse it; but the request itself was a presentation of the law in the abstract, and not so plain as to be free from error. Hnder the evidence the court was not compelled to give it in charge, and we can not hold that failure to give it was harmful to the defendant, especially since instructions actually given were more favorable to him than that requested. The court treated the occurrence, in each reference to it, from the viewpoint of the accused, as an accident, and instructed the jury that if they believed the shooting of the policeman, McDaniel, was an accident, they should acquit Fair, and unless they believed beyond a reasonable doubt that the shooting was not an accident, they should acquit, or if-they had a reasonable doubt as to whether the shooting were intentional or accidental, they should acquit. In view of the charge actually delivered, we can not say that the court erred in refusing the request. On the subject of involuntary manslaughter, as indicated by the request, it does not appear, as it should before the court would be authorized to give the request, that the misdemeanor of having a pistol or of carrying one without a license was the proximate cause of the shooting. See Alexander v. State, 160 Ga. 769 (5) (129 S. E. 102). In every case of involuntary manslaughter, “the death
The requested charge was predicated in part upon the testimony of a witness for the State, that she saw the pistol before a shot was fired and that it was pressed against the deceased’s leg, which negatives entirely the argument of counsel that the offense was involuntary. This witness testified she did not see the second shot, but that shot must have been the one which, according to the physician, perforated deceased’s intestine five times and the bladder twice. The trial judge considered that the theory presented by the defendant’s statement was one of homicide by mistake or accident, and he charged the jury: “On the subject of accident I charge you that the law provides: A person shall not be found guilty of any crime or misdemeanor committed by misfortune or accident, and where it satisfactorily appears there was no evil design or intention or culpable neglect. . . If the killing in this case was the result of accident, the defendant should be acquitted. . . If the defendant committed the acts charged against him, and it was an accident, the defendant should be acquitted. Likewise he should be acquitted if the State has failed to carry the burden of proving by the evidence in the case the truth of the material allegations of the indictment beyond a reasonable doubt. Likewise the defendant should be acquitted in this case unless you should believe from the evidence, beyond a reasonable doubt that the defendant did intentionally and with malice aforethought shoot and kill the deceased at the time and place and in the manner expressed in the indictment.” If the defendant’s statement presented a case of involuntary manslaughter instead of homicide by mistake or accident, the judge’s charge was more favorable to the defendant than he was
Was the charge of the court set out above subject to the complaints made against it? The point.has been made that the second special ground of the motion for new trial was not altogether approved by the judge. If this is true, it could not be considered. The judge’s certificate recites: “I can not recall the words or language of defendant’s counsel in reference to the failure of the State to offer in evidence any dying declaration of the deceased. The substance of this argument was that it was unreasonable to believe that no such dying declaration had been made, and criticized the solicitor-general for withholding such evidence from the jury. He argued that the officers or solicitor-general had kept from the jury evidence of a dying declaration which he argued must have been made in the case. I can not remember his exact language.” Grounds of such a motion will not’be considered where not unqualifiedly approved by the trial judge. Mitchell v. State, 152 Ga. 375 (3) (109 S. E. 357); Coart v. State, 156 Ga. 536, 538 (4a) (119 S. E. 723). Iñ a general way, however, in this case, the judge says he does not remember, the exact language used by defendant’s counsel, which it is attempted to set out in general terms in the motion for new trial. We do not think that this would prevent this court from passing upon the exception as modified by the note of the presiding judge. And we are of the opinion that the court did not err in instructing the jury that there was no evidence of a dying declaration or that McDaniel had ever made a statement in articulo mortis, conscious of his condition at the time, in conformity with the law upon such evidence. We are further of the opinion that the court had a right to tell the jury that there was no testimony upon a given subject, if indeed none was adduced, without violating § 4863 of the Civil Code or § 1058 of the Penal Code. The judge’s charge explained to the jury the legal definition of- a djdng statement, by saying that a statement made by a wounded person would not be admissible as a dying declaration unless the declarant was in articulo mortis and conscious of approaching death. Counsel for the defendant argued that the evidence warranted an inference that McDaniel had made a statement while in the article of death, which had not been introduced in evidence by the State. He did not assert there was evidence of such, but argued to the
But it is insisted that the court expressed an opinion by the words of the charge: “No such declaration having been offered and admitted in evidence in this case, you should try the case on the evidence and the defendant’s statement as applied to the rules of law given you in charge.” This was merely a statement by the judge that there was no evidence of a certain thing, to wit, a dying declaration. The court’s statement, being the truth, was not error. In East Tenn. &c. R. Co. v. Markens, 88 Ga. 60 (13 S. E. 855, 14 L. R. A. 281), this court said: “Where there is no evidence that a passenger in a public hack knew of danger from an approaching train on a public crossing, the judge may so state to the jury, and may say that there is no evidence of any failure in duty on the part of such passenger to avoid the injury.” The judge further said: “This would not mean that you should not consider statements made by the deceased as admitted in evidence shortly after the occurrence and as a part of the res gestae, and before the deceased went to the hospital.” This is alleged to be expression of opinion upon the evidence. We do not consider that the judge intimated that he believed any of the testimony. He simply stated in effect that the jury should consider testimony admitted in evidence as a part of the res geste. There is a wide difference between saying that a particular thing has been proved and saying that there has been testimony on that thing. As was said in Saffold v. State, 11 Ga. App. 329 (2) (75 S. E. 338), “It is permissible for the trial judge to state his recollection of what has been testified, when in doing this he does not intimate any opinion as to the weight which the jury should attach to the testimony, or that any statements which have been made are true.” The judge in the case at bar of course instructed the jury that they were the exclusive judges of the evidence and credibility of the witnesses, and that they had the right to believe the statement of the defendant in preference to the sworn testimony in the case. In Glover v. State, 129 Ga. 717 (59 S. E. 816), the trial judge cer
Judgment affirmed..