9 Ga. App. 865 | Ga. Ct. App. | 1911
©n an indictment for murder the plaintiff in error was convicted of involuntary manslaughter in the commission of an unlawful act; and the judge overruled his motion for a new trial. The record raises only two questions. (1) Is there any evidence in support of the finding that'the homicide was involuntary in the commission of an unlawful act? (2) Did the trial
It will thus be seen that the evidence was in conflict as to how'' the decedent was shot. Did the accused point the pistol at her and snap it several times, until it fired and killed her? Or did the two playfully struggle for its possession, and did it go off accidentally, there being nothing to show which one had pulled the trigger ? If the first, the case was one of involuntary manslaughter; if the second, an accidental killing by misadventure. The jury were the exclusive arbiters of this issue, and they decided that it was involuntary manslaughter in the commission of an unlawful act. The question of law arises: . Where one points a pistol at another, in viola-' tion of section 349 of the Penal Code of 1910, and, thinkirigffhat it
The meaning of the word “determine” is to “find out or ascertain the truth” about an occurrence. If the judge meant to state that the physical facts he mentioned were proved, then these facts were not to be “found and determined” by the jury. In other words, the language expressly refutes the construction attempted to be'given to it, for it leaves to the “consideration and determination” of the jury the existence of both fact and intention.
Judgment affirmed.