85 Ga. 285 | Ga. | 1890
Huff was indicted in the superior court of Oglethoi’pe county, in that, it was alleged, he did kill and murder Louis Waller. lie was put upon his trial and found ' guilty, and was sentenced to be hanged. He moved for a new trial upon the ground that the verdict was without sufficient evidence to support it. The evidence showed that the deceased, as road-overseer, had summoned the accused to work on the public road, and that he appeared with an axe. He was directed by the deceased to turn over the axe to Wheelis, a white boy, who was. also at work on the road, and to take a hoe. To this he objected, stating that the axe belonged to himself, and that he thought every one ought to work with his own tools. He complied, however, when the overseer stated that he would send to the house for an axe. Prank Waller, a brother of the deceased, came up and asked what was the matter. When the deceased stated what had .taken place between him and Huff, and that Huff was “ swelled up” about it, the brother replied, “We will take the swelling out of
We think it needs only this statement of the facts to show that the verdict is without evidence to support it. There is one material element in the crime of murder which these facts fail to show, that is, malice. Malice is a deliberate intent unlawfully to take away human life, and we cannot say from this evidence that such an intent existed. Is it'manslaughter? Voluntary .manslaughter is defined to be the unlawful killing of a human creature without malice, either express or implied, and without any mixture of deliberation whatever; and in all cases of voluntary manslaughter there must be some actual assault upon the person killing, or an attempt by the person killed to commit a serious personal injury on the person killing, or other equivalent circumstances to justify the excitement of passion, and to exclude all idea of deliberation or malice, either express or implied. We are of the opinion that the defendant could not have been convicted of any higher grade of homicide than voluntary manslaughter, even if he could have been lawfully convicted of that. It was clearly not the offence of murder.
Now it will be for the jury, under a proper charge of the court, to determine whether the homicide was voluntary manslaughter or justifiable homicide; and for the reasons we have stated, we direct that another trial be had to the end that the same may be in conformity with these views. Judgment reversed.