21 Ga. App. 300 | Ga. Ct. App. | 1917
(After stating the facts.) 1. We think the evidence authorized the charges complained of in grounds 8 and 9 of the motion for new trial. The charge set out in ground 8 was, that, should the jury believe the defendant lured Cohen Malone to his house for the purpose of killing him, and brought about circumstances where it was necessary for Malone to protect his own person, the defendant would not be authorized to take- advantage of any illegal circumstances he brought about himself. The charge set out in ground 9 was on the law of mutual combat.
2. The following excerpts from the charge of the court are complained of, for the reason that they misstated the contentions of the defendant, and put him in the attitude of asserting before the court and .jury two inconsistent defenses, thereby prejm
Was the charge of the court, under these circumstances, harmful to the accused? It is the contention of the State that the charge 'gave the defendant the benefit of a defense to which he really was not entitled, and that therefore it could not be harmful to him, but that it was really helpful.- We can not take that view.of it. Jurors, as a rule, respect and give full weight.to the words which fall from the lips of the trial judge in his charge, and rightly so. .The testimony- of .the witnesses and the statement of the defendant may, and sometimes do, fall upon inattentive ears. How often have we seen tired jurors who have given but slight attention to the arguments of counsel listen intently to catch every word uttered by the trial'judge in his charge. Can it be said, then, when a respected trial judge sums up the case and gives to the jury, just before they retire to consider their verdict, some theory of the case, as a contention of the defendant, which he does not ask for, and which on the face of it the jurors at once recognize is utterly without foundation in fact, that s,uch instruction is harmless to the accused? Does it not weaken his real defense in the minds of the jury, if he has one? We are so constituted that our confidence in the rightfulness of. a cause really meritorious may be shaken because of some contention which is plainly false or absurd.
The argument of counsel, as stated in the note appended by the court to the grounds of the motion, did not authorize the charge complained of; It is. true that a party can not obtain a reversal for an error which he has invited, as by s request to charge or by a formal admission that a given principle is not involved in the case. Partee v. State, 19 Ga. App. 753 (93 S. E. 306); Quattlebaum v. State, 119 Ga. 433 (46 S. E. 677); Griffin v. State, 113
Judgment reversed.