Hill v. State

Feb 15, 1918
No. 338
Reporters:
, ,
Before:
Fish

Lead Opinion

Fish, C. J.

1, 2. The rulings announced in the first and second headnotes do not require elaboration.

3. One ground of the motion for a new trial is: “Because the judge in the trial of said case failed to charge the jury upon the principle of law in regard to voluntary manslaughter, as set out in section 65 of the Penal Code, although the evidence adduced upon the trial of said case involved the possible finding by the jury of voluntary manslaughter.” To this ground the judge appended the following note: “The reason the court failed to charge as complained of was, that the law was not involved, and that both counsel representing the defendant insisted to the court and jury that voluntary manslaughter was not involved.” In a case where the evidence tends to show murder and voluntary manslaughter, if at the request of counsel for the accused, or upon his formal ■admission that the latter offense is not involved, the judge omits to charge the law relating to voluntary manslaughter, a judgment refusing a motion for a new trial which complains of such omission will not be reversed. Threlkeld v. State, 128 Ga. 660 (58 S. E. 49). In such a case, where there was no such request, or formal admission, the omission to charge would be reversible error. The note by the judge, quoted above, not having been made by the accused or his counsel, should be liberally construed in favor of the accused. Horton v. State, 120 Ga. 307, 310 (47 S. E. 969). Tested by this rule, the judge’s note is not to be construed as stating that the counsel for the accused formally admitted that the issues did not involve voluntary manslaughter, or that they requested the judge not to charge the law applicable to voluntary manslaughter. The statements made in the note furnish no reason for failure to charge the law relating to the offense of voluntary manslaughter, and the omission to do so was, *652under the facts of the case, reversible error. Andrew v. State, 134 Ga. 71 (67 S. E. 422); Vinson v. State, 145 Ga. 293 (89 S. E. 203).

Judgment reversed.

All the Justices concur, except



Dissenting Opinion

Gilbert, J.,

dissenting. A party can not complain of an error which he has invited. Hicks v. State, 105 Ga. 627 (31 S. E. 579); Quattlebaum v. State, 119 Ga. 433 (46. S. E. 677); Horton v. State (supra); Caesar v. State, 127 Ga. 710 (57 S. E. 66); Threlkeld v. State (supra).