112 Ga. 193 | Ga. | 1900
It appears from the record that Seaborn Hays was for disorderly conduct ejected from an electric car which was proceeding from a point outside of the corporate limits of Savannah to the city. Upon the return of the same car from the city to a place near that at which the expulsion had taken place, the accused haded the motorman, who stopped the car, and shortly after it came to a standstill he was shot and killed by the accused. The latter was subsequently indicted and tried for murder, convicted, and sentenced ’ to be executed. The evidence in behalf of the State tended to show a wanton and unprovoked murder, without a shadow of excuse or justification. That introduced in behalf of the accused, as well as his statement, tended to show that, after the car had stopped, he asked the motorman to request the conductor to return the fare which the accused had paid before being expelled from the car, and that in response to this request the motorman began firing at the accused, who thereupon in self-defense shot and killed his assailant.
A motion for a new trial was made and overruled, and Hays excepted. This motion- discloses that the accused contended, among other things, (1) that he had a right to peaceably demand a return of his fare, and (2) that he in fact did, in this manner, make or attempt to make such a demand. The court in its charge to the jury stated the first of these contentions, but omitted to state the latter. The charge to the jury embraced instructions to the following effect: (a) Carriers of passengers may eject from their conveyances passengers who are “guilty of improper conductor of bad, dissolute, or
■ The court nowhere in its charge instructed the jury to the effect that the accused had the right, in a peaceable and proper manner, to demand the return of his fare, if he in good faith believed he was entitled thereto; nor, as already observed, did the court inform the jury of the contention of the accused that, in such belief, he did peaceably attempt to secure a return of his money. The motion for a new trial distinctly makes the point that, in view of these omissions and of the instructions actually given upon this branch of the case, the accused did not have a fair and impartial trial. We are of the opinion that this point is- well taken. Let it be borne in mind that the contentions -of the accused were supported by sworn testimony which, if in every respect true, would have entitled him to an acquittal. The determination of the case depended largely upon the view taken by the jury with respect to the credibility of the witnesses sworn pro and con. Under these circumstances, the accused was entitled to a charge so framed as not to deprive him <of any substantial element of the defense relied upon. Fairly summarized, the charge given amounted to about -this: If the accused was unlawfully ejected from the car, it was his right to bring a civil action for damages, and he had no right to collect the money he claimed as his due at the point of a pistol; nor could he justify the killing upon the .theory of self-defense, unless he was himself
Judgment reversed.