135 Ga. 434 | Ga. | 1910
Dissenting Opinion
dissenting. I am constrained to dissent from the views of the majority of the court. The evidence was, in effect, as follows: One Perry, in leaving home, instructed Jordan, who was in Ms employ, to guard Perry’s melon-patch and to shoot any one who might 'attempt to steal the melons. The accused agreed to do this. He went to the melon-patch at night, armed with a
My -opinion is that the statement of the accused) when considered in connection with the undisputed evidence, was not sufficient to authorize a finding that he was intimidated. Neither his statement nor the evidence shows, as above stated, that the deceased or either of his companions was armed with any kind of a weapon, and the uncontradicted evidence is that the accused was armed with a double-barreled shotgun loaded with buckshot, and that he shot the deceased when he was about thirty feet away from him, at which time, according to the prisoner’s own statement, the deceased, who had started toward him, had stopped and picked up a melon. Tt does not appear that either of the men who were with the deceased in the patch had approached any nearer to the accused than he did, the statement of the accused merely indicating that they had started toward him. Besides, the evidence, as well as the statement of the accused, showed that he had agreed to obey the instructions of the owner of the melons to shoot any one who came to steal them, and it would seem he had evidently gone to the melon-patch for that purpose.
In Long v. State, 12 Ga. 293, 321 (12), in defining robbery by intimidation, it was said: “ The rule is this: if the fact be attended with such circumstances of terror — such threatening, by word or gesture, as in common experience are likely to create an
Furthermore, I do not think that there was anything in the evidence or the statement of the accused, or both, considered together, that would have authorized a charge upon voluntary manslaughter, had a proper’written request been made for the court to instruct the jury on that subject. In Hayes v. State, 58 Ga. 35, 46 (7), it was said: “To intentionally kill, with a deadly weapon, one who is committing a trespass upon property, is generally mur
To my mind there was no merit in any of the assignments of error, and the court did not err in refusing to grant a new trial.
Lead Opinion
1. On a trial for murder, the evidence authorized the jury to find that three men were stealing watermelons from a patch at night, and that one of them was shot by a person who was left by the owner to guard the property. The defendant’s statement as to the actual occurrence was in substance as follows: He received information that some men were hanging around the patch, with the apparent intent to steal melons. When he reached the patch, the men were in it. He asked what they were doing there, and they replied by asking him what was that to him. He said he had a great deal to do with it, and if they did not get out of there he would make them do so. They said' that if he did not get out from there they would make him do so. He said: “You will have to; I am here on business.” At that time they started toward him, and one of them picked up a watermelon; and as he stopped, the accused shot him. Held, that the statement, in connection with the evidence, was sufficient to require the court to instruct the jury, upon request, on the subject of the right of one lawfully in charge of property to protect it against robbery by intimidation, and the doctrine of reasonable fears in connection therewith; and a refusal to charge on that subject, on request, and charging in effect so as to exclude such theory from the jury, was erroneous. Penal Code, §§ 151, 153, 170; 2 Bish. Cr. L. §§ 1177, 1178; Clements v. State, 84 Ga. 660 (11 S. E. 505, 20 Am. St. R. 385) ; Long v. State, 12 Ga. 293, 320.
2. While the statement of the accused, in connection with the evidence, would authorize a charge on the subject of voluntary manslaughter, there was no request to charge on that subject.
Judgment reversed.