38 Ga. App. 737 | Ga. Ct. App. | 1928
Lead Opinion
The defendant was indicted for assault with intent to murder, and was convicted of unlawfully shooting at another. The only ground of the motion for a new trial insisted upon by his counsel is that the court erred in charging as follows: “If the guilt of the accused has not been established by the State, and you believe that he acted in self-defense, under the law to which I have called your attention, it would be your duty to acquit him, and the form of your verdict would be, ‘We, the jury, find the defendant not guilty/ ” This charge is alleged to be error because the court stated conjunctively two theories under which the defendant might have been acquitted, when as a matter of law he would have been entitled to an acquittal under either theory; that is to say, he would have been entitled to an acquittal if his guilt had not been established by the State; and he would have been entitled to an acquittal if he had acted in self defense.
We are well aware that “a verbal inaccuracy in a charge, resulting from a palpable slip of the tongue, and which clearly could not have misled the jury, is not cause for a new trial.” So. Ry. Co. v. Merritt, 120 Ga. 409 (47 S. E. 908). Some other cases controlled
Judgment reversed.
Dissenting Opinion
dissenting. In the light of the charge as a whole and the facts of the case, I do not think the verbal inaccuracy in the charge could have misled or confused the jury. The verdict was amply authorized by the evidence, and in my opinion the judgment should be affirmed.
