76 Ga. 473 | Ga. | 1886
Dock Jackson was one of the guards of the convict camp on the Chattahoochee river near Atlanta. He was, with one other guard, in charge of some sixteen convicts
But the guard is on duty to keep safely convicts entrusted to'him, and to prevent their escape. Therefore, if this convict was trying to escape, or if the circumstances were such as to lead the accused, the guard, as a reasonable man, honestly to conclude in his own mind that the convict was trying to escape, and that the necessity was upon him to shoot and kill in order to prevent the escape, and if, urged by this necessity pressing upon him in the discharge of official duty as guard, he did shoot and kill
There can be no involuntary manslaughter where the intention is to kill. Such is ihe necessary inference—indeed, the plain meaning of the definition thereof in our own Code, as in the English law everywhere, so far as I know ; and the only doubt I have about the propriety of giving the law of involuntary manslaughter in charge in this case is that which I understand influenced the presiding judge, to-wit, that the evidence does not authorize it, because there is none of an intention on the part of the guard not to kill. I do not understand the other members of the court to differ with me on the law; but they think that the evidence is sufficient, under all the circumstances of the case, to authorize the charge, and that it should have been given. It maybe that the statement of the accused, to the effect that he went round to head off the convict escaping, leaving the others in charge of the other guard, and ran and saw him within fifty or sixty feet, and shot, indicates the intention simply to discharge duty in preventing the escape and no intention to kill the convict, and that the shot was to disable and not to kill. It is rather a strained construction. But possibly the jury might have inferred that thus heading off the convict, and in the excitement of the moment, the guard shot without due caution and circumspection, and death resulted'without his intending it.
There, was some dispute between counsel about the statement of the accused, his counsel contending that it went to the extent of denying the intent to kill out and out, but the judge decided with the state, and it stands in
Inasmuch, however, as my brethren are so decided in their convictions that there is enough testimony to authorize the charge of involuntary manslaughter, I strain a point and acquiesce in the view they take, basing that acquiescence on the inferences, rather remote, I confess, which the jury might have drawn from the statement of the accused in the record. Indeed, where there is evidence sufficient to raise a doubt, however slight, upon the point, whether the crime be murder or manslaughter, voluntary or involuntary, the court should instruct the jury upon these grades of manslaughter as well as murder. Wynne, Jr., vs. The State, 56 Ga., 113. Such is substantially the rule laid down in that case. If there be no evidence at all upon the issue, then the charge should not be given; but if any, however slight, if enough to raise a doubt, then the charge should be given, is the principle there clearly established by a full bench. I cannot say that the evidence, or rather statement, which the jury could prefer to the evidence, might not create a doubt as between murder and involuntary manslaughter, and upon the authority of the case in the 56 th Georgia Reports, as well as in deference to the very strong convictions of my associates, I assent to the grant of the new trial on this ground, where it is put by the entire court.
These two points, first, that the evidence is not sufficient t.o'support the verdict, on which we express no opinion, as the case will be tried again; and, secondly, that the law’ of involuntary manslaughter, in the commission of a lawful act without due caution and circumspection, should have been given, are those pressed before us, and on the last the new trial is ordered. Code, §§4327, 4328, 4329. No other error, certainly no other material error, is disclosed in the record.
Judgment reversed.
0ne ground of the motion for new trial was that the court refused to give §4327 of the Code in charge, and to call the attention of the jury to the two grades of manslaughter, although his attention was called thereto.