52 Ga. App. 290 | Ga. Ct. App. | 1935
Lee Green was indicted for murder and convicted of voluntary manslaughter. To the overruling of his motion for new trial he excepted.
1. The first special ground complains that the court should have declared a mistrial on the defendant’s motion: first, on the ground that the judge allowed the solicitor general to make a supplemental statement to the jury of what he expected to prove after he had made his opening statement and the defendant’s counsel had made.his statement as to what he expected to prove; second, because of certain alleged improper and prejudicial statements made by the solicitor general in his supplemental opening statement. The court did not abuse its discretion in allowing the solicitor general to make a supplemental opening statement. The following explanatory note was made by the judge in reference to the remarks of the solicitor general: “The judge stated to the solicitor general and the jury that the remarks were highly improper and instructed the jury to disregard the words used and not to let the defendant’s case be in any way prejudiced or harmed by what the solicitor general had said,” and when all of the other circumstances, including the reprimand of the solicitor general by the court, are considered, we do not think the court erred in refusing to declare a mistrial. Corbitt v. State, 7 Ga. App. 13 (4) (66 S. E. 152); York v. State, 42 Ga. App. 453 (8), (15) (156 S. E. 733); Walker v. State, 124 Ga. 97 (5) (52 S. E. 319).
2. The second special ground excepts to the following charge: “The reasonable doubt of the law is a doubt that legitimately springs from the evidence, or from the lack of evidence adduced upon the trial, and leaves a reasonable mind wavering and unsettled — not satisfied from the evidence,” on the ground that it was error because a reasonable doubt may arise from the statement of defendant which is not evidence and that it also may arise from uncertainty or unreliability or lack of evidence. This charge is not ground for a motion for new trial. Barnard v. State, 119 Ga. 436 (46 S. E. 644); Dumas v. State, 63 Ga. 601 (8); Long v. State, 38 Ga. 491 (8); Malone v. State, 49 Ga. 210 (8); Walker v. State, 118 Ga. 34 (44 S. E. 850); Brantley v. State, 133 Ga. 264 (5) (65 S. E. 426).
4. Grounds 3, 4, 5, 6 and 9, which complained that the court erred in charging on the defense of absolute and unconditional justification, will be discussed together. In Hill v. State, 64 Ga. 453, 468, it was said: “Defendant insists that the court should have turned the jury loose upon this section [Code of 1933, § 26-1016,] and should have instructed them that, ‘where a man kills another for having criminal intercourse with his wife it is for the jury to decide whether the killing stands upon the same ground of reason and justice as those enumerated in the code, and if they so believe, it would be a case of justifiable homicide.’ The judge declined to give this request but instructed the jury that ‘there is no principle of reason or justice enumerated in the Code by which, after an injury shall have .been consummated, no matter how great and no matter how grievous that injury may be, the party injured would be justified in taking vengeance into his
The defendant relies strongly on Biggs v. State, 29 Ga. 723 (3) (76 Am. D. 630), and Miller v. State, 9 Ga. App. 599 (71 S. E. 1021). In the Biggs case it was held: “If a man takes the life of another who attempts the seduction of his wife, under circumstances of gross and direct aggravation, it is for the jury to find whether the case stands upon the same footing of reason and justice, as other instances of justifiable homicide enumerated in the Penal Code.” The Sill case, supra, in distinguishing the Biggs case, said: “The Augusta case [Biggs v. State, supra,] of shooting at another, in our own reports, is wholly unlike this. There no breath of suspicion soiled the purity of the wife. The very evening before, the affront was given; and the insulter, the very next morning at breakfast, had the audacity to take his seat at the same table and immediately in front of the insulted woman and the guardian of her virtue; and it was in that case that this court ruled that the jury might consider whether it stood on the same
Thus if there was actual danger, or if it reasonably appeared there was danger, of the deceased committing' a future act of adultery with the defendant’s daughter, and if such actual or reasonably apparent danger was of such a pressing nature as to demand immediate attention in order to prevent it, the danger would be impending, and if there was an impending danger which, either actually or as it reasonably appeared to defendant, could not be otherwise prevented than by the death of the assailant, the killing would be justifiable. “It has never been held, so far as our investigation has extended, that either a wife or a husband can lawfully kill a known paramour of his or her [minor daughter’s] mate upon the idea of preventing an irreparable wrong;” Coart v. State, 156 Ga. 536, 557 (119 S. E. 723), and in the application of section 26-1016 of the Code of 1933, the killing must be
5. Error is assigned on the following charge: “If you fail to find the defendant guilty of anything, the form of your verdict will be ‘We, the jury, find the defendant not guilty’”-on the ground that the expression “if you fail to find the defendant guilty of anything” used by the court “was calculated to convey to the jury that the court thought the defendant guilty and he could be acquitted only in the event the jury failed to perform their duty, the use of the word ‘fail’ being calculated to convey to the jury the idea that the court thought they would fail to perform their duty if they acquitted.” We do not think this charge is ground for new trial. However, we are of the opinion that some such form as “if you find the defendant not guilty, the form of your verdict will be £we, the jury, find the defendant not guilty’ ” would have been less likely to be misinterpreted by the jury-
6. Grounds 11, 12, 13, 14, 16 and 17 complain of the refusal of certain requests to charge which relate to the right of the
The request complained of in ground 15 was argumentative, and for this reason alone was properly refused.
7. "The law of voluntary manslaughter may properly be given in charge to the jury on the trial of. one indicted for murder, where, from the evidence or from the defendant’s statement at the trial, there is anything deducible which would tend to show that he was .guilty of voluntary manslaughter, or which would be sufficient to raise a doubt as to which of these grades of homicide was ■committed.” Reeves v. State, 22 Ga. App. 628 (97 S. E. 115). Applying this rule of law to the evidence and the defendant’s statement, we do not think the judge erred in charging on the law of voluntary manslaughter. McPhearson v. State, 19 Ga. App. 232, 233 (91 S. E. 336); Williams v. State, 130 Ga. 400; Mize v. State, 135 Ga. 291, 298 (69 S. E. 173).
The evidence authorized the verdict, no error of law is shown, and the court did not err in overruling the motion for a new trial.
Judgment affirmed.