12 Ga. App. 111 | Ga. Ct. App. | 1913
The plaintiff in error was indicted for murder and was convicted of voluntary manslaughter. The present writ of error challenges the judgment refusing a new trial. It is uncontradicted in the evidence that the deceased (who was the brother of the accused) came to his death as a result of a gunshot wound inflicted by the accused. Only one witness testified for the State, and the accused rested his defense upon his own statement. According to the testimony of the State’s witness, he heard the report of a gun and went to the house where these two brothers lived with their sister. He found the wounded brother upon a bed, suffering intense pain from a gunshot wound in the thigh. The defendant and the sister were present in the house. The wounded man was apparently in a djdng condition when the witness reached the house, though he seemed to be perfectly rational. It was about an hour after the witness heard the.gun fire before he went to the house. The wounded man told him, soon after he reached the house, that the wound was going to kill him; and, about an hour before his death, repeating that he was going to die, he made to the witness a statement which was submitted by the court to the jury. According to this statement of the deceased, the defendant cursed him and applied to-him unmentionable opprobrious epithets, and he slapped the defendant, and told him that nó man could speak in that way of his dead mother; the defendant got his pistol and
According to the statement of the accused, he had had serious domestic troubles, and was separated from his wife and children, and, on account' of this, had been a very hard drinker. He was drinking all he could get the day of the difficulty, though he was running his mill that day. According to his statement, he left the mill about one o’clock, and at the dinner table found his brother (the deceased) who had been plowing, and inquired of him what sort of plowing he had been doing and how the plow worked, and suggested that he quit plowing and lay-by the corn; whereupon his brother began to quarrel and curse. The defendant stated, that he left several times to keep from having trouble with
In the course of his long statement to the jury (which it is not necessary to quote in full, because much of it deals with matters wholly irrelevant to the trial), the defendant stated that his brother said to him after the shooting: “You have, shot me, but I don’t
It will be seen that there was sharp conflict between the testimony for the State (if the jury found that the statement of the deceased was a dying declaration) and the statement of the accused; but in no view of the testimony adduced by the State could a verdict be found for a lower degree of homicide than voluntary manslaughter; and the defendant’s own statement is inconsistent with the supposition that the gun was fired by accident, although he may not have intended to kill his brother. The statement of the defendant— which was very incoherent—suggests only two .possible defenses: that, acting under the fears of a reasonable man that a felony was about to be committed upon him, he shot to defend himself against the pistol in his brother’s hand; or that he fired the shot while in a condition of maudlin drunkenness. Neither of these positions affords the accused a tenable defense. The jury could not find (although the defendant said he feared his brother would use the pistol) that the shot was fired in self-defense; for the defendant himself stated that the gun was fired without his knowing how it was discharged; and furthermore, the defendant does not state anything more than that his brother had the pistol, and he does not state that the deceased had drawn it on him, or was attempting to aim it, or had pointed it in his direction. As to the plea of drunkenness: This affords no excuse for crime, except under the circumstances provided by the code, as the court very properly instructed the jury. The credulity of the jury would have been subjected to a very severe strain-to believe that the defendant was so drunk as not to know that the gun was being discharged in the direction of his brother, when, according to his own statement, he was sufficiently sober, only a moment previous, to engage in a conversation which he distinctly remembered at the time of making this statement, and in which he discussed with his brother even the minutiae of their business.
There were only two preliminary questions for the jury to determine in their consideration of the evidence: '(1) Were the alleged declarations by the decedent made in the article of death and when
Complaint is also made, in the motion for a new trial, that the charge of the court is subject to the same objection as were the instructions in the case of Darby v. State, 9 Ga. App. 701 (72 S. E. 182). An inspection of the record, however, discloses that in the present case the court told the jury that "if a party is wounded and the wound is mortal, and between the time of receiving it' and his death he should become conscious of his approaching death, and should make statements while in that frame of mind and while surrounded by that condition, as to the cause of his death and the party who killed him,” it would be their duty to consider the statement, along with other testimony, etc. And in immediate connection therewith the court gave in charge the section of the code defining dying declarations, and instructed the jury that the person making the declarations must be in the article of death. So that the instructions in the present case are not subject to the objection urged in the Darby, case, supra. Furthermore, in the present case there was no evidence to dispute the' testimony of the State’s witness that the declaration was actually made in the article of death. And for that, reason, even such an instruction as that dealt with in the Darby case would hot be prejudicial error.
The requests to charge, so far as applicable, seem to have been sufficiently covered by the charge given, except the request that the jury be instructed as to the principle embodied in section 40 of the Penal Code, with regard to crimes committed by misfortune or