136 Ga. 132 | Ga. | 1911
The accused was convicted of murder. The State offered evidence tending to show that the deceased died from a knife wound intentionally inflicted by the accused. The wound was about four and a half inches in depth, deeper than the blade of the knife with which the wound was inflicted, and, in the opinion of the surgeon who examined the deceased, the blade and the jaws of the knife must have been projected in the wound. The accused contended that the homicide was accidental. His statement before the jury and the testimony offered by him tended to show that the accused, the deceased, and one other person (who testified as a witness) were going down the streets at about nine o’clock at night. The accused had an open knife in his hand, and his two companions were engaged in a playful struggle to take it away from him. In this struggle the deceased was unintentionally stabbed in the left thigh. There was no quarrel or bad feeling existing between the accused and the deceased, and after the wound was inflicted the accused and his companion carried the deceased to the office of a surgeon, where he died a few hours thereafter. The accused presented a written request for an instruction on the law of involuntary manslaughter in the commission of a lawful
We think this grade of homicide was involved in the case, and it was error for the judge to refuse an appropriate instruction thereon. Our code declares that “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 siich 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.”' Penal Code (1910), § 67. The element differentiating involuntary manslaughter in the commission of a lawful act where due caution and circumspection have not been observed from an accidental and noncriminal killing is the negligence or absence of culpable neglect in the performance of the lawful act which results in the death of a human being. If the circumstances attending the commission of a homicide by stabbing or cutting with a knife authorize the inference that there was no wrongful act, and no intention to stab or cut, but that the wound was inflicted because the person lawfully in possession of the knife may not have exercised necessary and proper precaution against a probable serious injury to the person who is engaged in a playful struggle to dispossess him of the knife, the homicide would be involuntary manslaughter. The accused under such circumstances would not be entirely exonerated from the consequences of his unintentional act, where he fails to observe proper precaution against the infliction of serious injury, or where the injury would not have been inflicted but for his negligence. In the case of Austin v. State, 110 Ga. 748 (36 S. E. 52, 78 Am. St. R. 134), it appeared, “that the accused and deceased with others were playing together in a house; that a gun was being' handled by different members of the party; that the deceased went out of the house, and the accused followed her with the gun in his hands; that when in the yard they began again to play, and the deceased attempted to take the gun from the hands of the accused, the latter having his hand upon the stock of the gun, and the
Judgment reversed.