80 Ga. 450 | Ga. | 1888
Fogarty was indicted in the superior court of Chatham county for an assault with intent to murder; to which indictment he pleaded not guilty. On the trial of the case the jury found a verdict of guilty; whereupon he made a motion for a new trial, upon forty-two grounds, which was overruled, and he excepted.
This court, in the case of Smith vs. The State, 63 Ga. 170, held that “the jury are to act as a body, and should be charged as a body. The individual jurors are not to be addressed in the charge in a way to discourage mental harmony and concert. It is not incumbent upon the court to stimulate their individuality by charging at the prisoner’s written request, ‘that each juror must be satisfied for himself, from the evidence, of the guilt of the defendant, before he can lawfully agree to a verdict of guilty.’ ” We do not think, therefore, that the court erred in refusing the request set out in this ground of the motion.
“ 5 th. Because the court erred in refusing to give in charge to the jury the following written request: ‘ The defendant should be acquitted unless the jury are satisfied beyond a reasonable doubt that the assault was not produced by mental disease.’
“ 6th. Because the court erred in refusing to give in charge to the jury the following written request: ‘ If the defendant commit an assault, knowing it to be wrong, when driven to it by an uncontrollable and irresistible impulse, arising not from natural passion but from an unsound condition of mind, he is not criminally responsible.’
“7th. Because the court erred in refusing to give in charge to the jury the following written request: ‘You must be satisfied beyond a reasonable doubt of the defendant’s mental capacity to commit the crime charged.’
“ 8th. Because the court erred in refusing to give in charge to the jury the following written request: ‘ If from the evidence in the case a reasonable doubt arises in youi*456 minds as to the sanity or insanity of the defendant, he is entitled to the benefit of that doubt.’
“ 10th. Because the court erred in refusing to give in charge to the jury the following written request: " Though a total want of responsibility on account of insanity be not shown, yet if the prisoner’s mind was so far affected as to render him incapable of a deliberate premeditated assault with intent to murder, he cannot be convicted of assault with intent to murder.’
" 11th. Because the court erred in refusing to give in charge to the jury the following written request: " If you have any reasonable doubt that he was, at the time of the committing the alleged assault, of sound memory and discretion, it is your duty to give him the benefit of that doubt and acquit him.’
“12th. Because the court erred in refusing to give in charge to the jury the following written request: "If you find that the defendant is subject to fits of insanity, he may not inaptly be called an insane man.’
“13th. Because the court erred in refusing-to give in charge to the jury the following written request: " You may consider the mental and moral condition of the prisoner at the time of the alleged assault, for the purpose of determining whether or not he was capable of forming the deliberate intention unlawfully to take away the life of a fellow-creature. If you find from his condition, or from external circumstances capable of proof, that he was unable to form that deliberate intention, then there can be no express malice; and if you have a reasonable doubt of the existence of that deliberate intention, you are to give the benefit of that doubt to the prisoner.’
“ 14th. Because the court erred in refusing to give in charge to the jury the following written request: " You cannot imply malice unless you find that no considerable provocation appears, and in addition thereto, that ail the circumstances of the assault show an abandoned and malignant heart. If the assault can be attributed by you to*457 his mental or moral nature, and if you find that his mental and moral condition is the result of epilepsy, then you should attribute it to that, rather than to an abandoned and malignant heart; because if you can give to an act one of two constructions, the one in favor of the prisoner’s innocence is the one that ought to be adopted.’ ”
The able and learned counsel for .the plaintiff in erroj asked leave of this court to review our former rulings on the subject of these requests. We declined, pending his argument, to allow him to do so, stating’that if upon consultation, we saw reason to doubt the soundness of the rulings he sought to review, we would allow him to review them in further argument. We have carefully considered these rulings, and see no reason to doubt their soundness and wisdom. We do not think the court erred in refusing to give in charge the foregoing requests.
The defence was, insanity at the time of the shooting. In order to prove this insanity, it was shown that the defendant was afflicted with epilepsy, that he had a great many attacks of this disease, running through a period of three years or more, that .he had been under treatment by physicians for this disease, not only in Savannah but in New York, and that some of his family were afflicted with the same disorder; but no witness except one testifies that his mind was so disordered that he did not know that it was wrong to commit this offence, and that he did not know that he deserved punishment for the commission of it. Nearly all the witnesses testified that he was like other boys, except at times when these convulsions were upon him and immediately afterwards; and we think an impartial mind, upon reading the whole testimony, would readily come to the conclusion that even if the court below had given the charges as requested by the defendant’s counsel, the jury would be obliged to find the verdict they did find. The charge of the court was able, fair and impartial ; the jury in their verdict violated none of the instructions given them by the court in his charge; and we therefore think that these two grounds are without merit.
The 40th ground is also as to newly-discovered evidence; which evidence consisted in an affidavit of Dr. E. A. Bartlett, of Albany, New York; and he testifies, in substance, that one Thomas Ryan, who was about sixty years of age, had been examined by him, and was suffering from a disease affecting his mind, and in his opinion would never recover; that he was mentally diseased. Mrs. Fogarty also made an affidavit that she is the mother of Thomas Fogarty, and is the sister of Thomas Ryan, of Albany, New York, and that she had been subject all her life to fainting spells, and that her mother, who is dead, was similarly affected.- She did not communicate this to counsel for the defendant until after the trial. Mrs. Kelly testifies that she knows Mrs. Fogarty, and has seen her often, and knows she is subject to fainting spells, and that she suffers from great nervousness, and has been so afflicted for many years. Counsel for the defendant make affidavit that they had no knowledge of these facts until after the trial.
We think the court did right in overruling this ground of the motion, for two reasons: (1) It was cumulative in its character. While it is true that no direct question was asked the witnesses about the affliction of Ryan or the defendant’s mother, yet questions were propounded to Dr. Waring and Dr. Duncan as to epilepsy being hereditary, these questions evidently showing that the subject was in the mind of the counsel asking them. (2) It does not appear that due diligence was exercised in obtaining this information. The defence in this case was insanity caused by epilepsy. It seems to us that when this defence is set up by counsel so able and experienced as the counsel for the defendant in this case, one of the first questions asked the defendant or his family would be, whether or not his
Judgment affirmed.