2 Ga. App. 487 | Ga. Ct. App. | 1907
The plaintiff in error was indicted for the offense of murder and found guilty of the offense of voluntary nianslaughter. He excepts to the judgment overruling his motion for new trial. Only two questions are made in the record. Did the evidence authorize the verdict; and did the court err in charging the jury upon the subject of voluntary manslaughter? It is insisted by learned counsel for the plaintiff in error that a new trial should have been granted on each of the grounds of the original motion, and especially on the ground set forth in the aprended motion which complained that the court erred in charging the jury the law of voluntary manslaughter, for the reason that under the evidence and the statement of the defendant this law was wholly inapplicable to the case. The rule may be stated to be that where the evidence, in every view, requires a finding of murder or of not guilty, the law of voluntary manslaughter should not be given in charge; though if the evidence and defendant’s statement clearly shows that he should have been found guilty of murder and he is only convicted of voluntary manslaughter, he will not be heard to complain, although the jury may have been instructed as to the law of voluntary manslaughter when it was not applicable to the case. In the present case the court properly instructed the jury as to the law of voluntary manslaughter. The charge upon this subject, which is excepted to as inapplicable to the .evidence, is as follows: “You will observe, gentlemen, that one of the material facts in the bill of indictment to which I call your attention is,
We have quoted the foregoing portion of the charge to the jury, which is excepted to, in its entirety, because we think it especially pertinent to the evidence and clearly expressed to the jury. And in view of the evidence in the case, the excerpt from the charge complained of is its own best answer to the complaint. We have very closely scrutinized the evidence and applied it to the above quotation from the charge, with the result that we are satisfied that voluntary manslaughter was involved in the case. The jury were properly instructed upon the subject, and their verdict, finding the defendant guilty of manslaughter, was authorized. The evidence in the case is very voluminous. It could be of no practical benefit to indulge in a long and tedious rehearsal of the facts submitted to the jury, and we have, therefore, contented ourselves with simply stating the conclusions deducible from the evidence.
Omitting two of the witnesses, whose testimony the jury may not have believed, the case, upon its facts, is controlled by the decisions in Gann v. State, 30 Ga. 67, and Caruthes v. State, 95 Ga. 343, 22 S. E. 837, which are very similar. It does not appear from any source that there was premeditation, and. the current of the evidence leads our minds, as it did those of the lower court and jury, to the conclusion that upon a sudden quarrel the parties fought upon the spot, the combat being with deadly weapons, no undue advantage was taken on either side, and' that the killing was voluntary manslaughter. As said by Judge Lyon in Gann v. State, whenever the killing is the result of irresistible passion alone “and not from any mixture of malice or deliberation, then the killing is not murder, hut is voluntary manslaughter, no matter how that passion may be aroused; for if there is no malice either expressed or implied, or criminal neglect, there can be no murder . . . When the provocation given is of such a character that it so excites the slayer with such . . passion that he can not resist its influence, and when the killing is caused by such passion and not
Judgment affirmed.
