177 Ga. 329 | Ga. | 1933
The plaintiff in error was indicted for the murder of his wife, Katie Key, the indictment alleging that he shot Katie Key on October 25, 1932, with a shotgun, with malice aforethought, and caused the wound from which she died. Upon his trial he was convicted without a recommendation, and was sentenced to suffer the penalty of death. He filed a motion for a new trial, which he subsequently amended,- adding numerous grounds. Upon the hearing of the motion a new trial was refused by the trial court, and he excepted.
Under the evidence adduced by the State, the jury were authorized to return the verdict of guilty. The defendant admitted firing the shot that caused the death of the deceased, but he claimed that it was accidental. The defendant said, in part, in his state
The wife made a statement after she was shot, which was admitted as a dying statement. A witness, Dr. J. B. Key, testified as to the dying statement which was made after Dr. Key had called in two or three other witnesses. Dr. Key testified: “We took down what she had to say. She wanted to make a statement her husband killed her intentionally. The defendant was still in the office and present when she made this statement. She said she and her husband went to Jones County to see his father, and they went to a party and they had a little fuss, and there is where it started, and when they came back home they had a fuss that night and he beat her up, and the next morning she said she was going to leave, and she was getting her things out of the trunk, and she said when he first shot at her he missed her, and she says, ‘You can go and see where he shot in the floor; and the second time he shot at me he told me he was going to kill me,’ and the load hit her in the side. I never examined her clothing very closely when she was in my office. When she made that statement she was in a practically dying condition, with no hope of saving her. I had not given her anything to dope her up before she made the statement. She was fully conscious when she made the statement, and talked intelligently.” There was evidence corroborating the statement of the woman, especially as to two shots having been fired in the house. And there was also evidence of mistreatment of the deceased by the defendant. And another witness who was present when the deceased was making her dying statement, F. E. Cosey, testified: “Shortly before she died she talked to the defendant. I told him she was going to die,
The grounds of the motion for a new trial are referred to here as they are numbered in the amendment to the original motion. Error is assigned upon the failure of the court to give in charge to the jury § 40 of the Penal Code, which reads as follows: “A person shall not be found guilty of any crime or misdemeanor committed by misfortune or accident, and where it satisfactorily appears there was no evil design, or intention, or culpable neglect.” The failure to give this section in the language thereof was not hurtful to the defendant, in view of the charge actually given by the judge in the course of his instructions. He charged the jury, in part: “The State-contends in this case that the defendant, Eugene Key, unlawfully shot and killed Katie Key, and that such killing was murder. To this statement the defendant demurs and says he did not; while he admits he did the killing, but says that it was a pure accident and that he is not guilty. Those issues you have to pass upon.” This succinct charge put squarely before the jury the question as to whether the shooting was intentional or accidental. It would no doubt have been proper to read all of section 40. But if the court had, it might have been necessary to explain what is meant by the expression, “culpable neglect,” and the different degrees of negligence. But where the court instructs a jury in a case like this, where the defendant insists that the homicide was the result of an accident, the jury could not be misled or confused, or stand in need of further instruction, where the court informs them that if the shooting resulting in the homicide was an accident, they should acquit. The ruling that is made here covers the exception to the charge contained in grounds 12 and 13 of the motion.
In another ground error is assigned upon the failure of the court to instruct the jury that dying declarations “should be re
Upon the subject of the defendant’s statement the court charged the jury as follows: “The defendant has made a voluntary
The rulings made in headnotes 5 to 9, inclusive, require no elaboration.
Judgment affirmed.