Jordan v. State

124 Ga. 780 | Ga. | 1906

Cobb, P. J.

(After stating the foregoing facts.) Even if it can not be said that the testimony, taken as a whole, establishes that there was no intention to kill, it certainly can be, with confidence, asserted that it does not appear beyond a reasonable doubt that there was such an intention. If there was no intent to kill, the accused was not guilty of murder, unless the killing happened in the commission of an unlawful act which in its consequences naturally tended to destroy the life of a human being. Penal Code, §66. The throwing of the rock was an assault, and was, of course, an unlawful act. In determining whether the killing happened as the result of an act naturally tending in its consequences to destroy the life of a human being, much will depend upon the size and character of the rock. On this vital matter the evidence, at its best, is vague, uncertain, and unsatisfactory. The principal witness for the State testified that the rock “looked like it might be as big as my fist. I don’t know whether it was or not.” Where all the circumstances are such as to preclude the idea of deliberation, and where the weapon used is one caught up hastily, a killing resulting from the use of such a weapon under such circumstances is not generally murder, but only involuntary .manslaughter. In Ray’s case, 15 Ga. 223, it was said'that the fact that a person had accidentally and hastily taken up a board with which he had inflicted wounds which produced death, and had not provided the same, was a circumstance which did not favor the presumption that malice will be implied because the .weapon was of a character likely to produce death. In Henry’s case, 33 Ga. 441, the accused was a slave and a blacksmith, who intended to whip a striker, also a slave, striking him over the head with an axe helve and killing him, but with no intention to bring about that result; and there being no evidence from which such intention could be inferred because the helve may have been a weapon likely to produce death, a ■ verdict of guilty of murder was set aside on the ground that the evidence did not warrant such a finding. See also Crawford’s case, 90 Ga. 709; Taylor’s Case, 108 Ga. 390.

The accused, according to the evidence of the State, was clearly guilty -of involuntary manslaughter in the commission of an unlawful act, but the evidence did not authorize a finding that he was guilty of murder. It did not appear beyond a reasonable doubt that there was any intention to kill, nor did it appear beyond a reasonable doubt that the weapon used was one likely to produce death.

Judgment reversed.

All the Justices ggnoW/ Beck, J., who was disqualified.