42 Ga. App. 591 | Ga. Ct. App. | 1931
T. L. Martin, with others, was indicted for murder, the person alleged to have been killed being Dennis Hubert. The defendants elected to sever, and the State put Martin on trial. The jury convicted him of voluntary manslaughter. He filed a motion for a new trial, which, after being amended, was overruled, and a writ of error was filed. The special grounds of the motion for a new trial allege error in instructions of the court to the jury. Neither of the excerpts of which complaint is made requires the grant of a new trial, when it is considered in connection with the remainder of the charge and in the light of all the evidence.
I. The 1st excerpt from the charge complained of is as follows: “If an attempt has been made in this case to impeach any witness by proof of contradictory statements previously made, you may determine from the testimony first whether such statements had been made, and secondly, whether it was a contradictory statement to that which has been made by the witness on the stand; and, thirdly, whether it is material to h'is testimony and to the case; and if you should find that any witness has been successfully impeached by proof of contradictory statements, you should disregard that statement unless corroborated by other credible testimony, either direct or circumstantial, and the credit to be given to the balance of the testimony of the witness would be for the jury to determine.” It is alleged that this portion of the charge was error in that it took from the jury the right 'to determine as to the credibility of witnesses. It is in conformity to a number of decisions of this court and of the Supreme Court. However, to show this, the excerpt itself must be read in connection with its
2. The second excerpt from the charge complained of is as follows: “If you believe, beyond a reasonable doubt, that the defendant, either by himself or in connection with others, went to the place of the deceased for a lawful purpose, and that there was an assault upon the deceased, and that during the progress of a struggle that ensued that the defendant or any member of the posse killed the deceased in the heat of passion engendered by the struggle, you would be authorized to find the defendant guilty of the offense of voluntary manslaughter.” It is insisted that in these instructions the judge authorized the jury to convict the accused for mere “presence” at the scene of the homicide. Such a conclusion is unwarranted when the entire charge is read. The judge charged at length on “conspiracy,” and, among other things, told the jury, “unless there was a conspiracy, the defendant can not be held as a principal for anything except what you may find
3. The third special ground of the motion complains that the court erred in charging the jury as follows; “The passion, if any,
4. The excerpt from the charge complained of in the 4th ground of the motion is as follows: “If the circumstances were such as to show no malice, either express or implied, and you believe there was an attempted illegal arrest of the deceased, but that the defendant in good faith thought he had a right as a member of the posse to take the deceased into custody, and in the heat of passion brought about by the ensuing struggle he killed the deceased, he would be guilty of voluntary manslaughter.” We find in this portion of the charge no error that requires the grant of a new trial. The charge in this case is easily differentiated from the charge in Hall v. State, 133 Ga. 178 (7) (65 S. E. 400), quoted and relied upon by plaintiff in error. The court in the Hall case stated that “such charge did not embody a statement of such facts as would make the defendant guilty of voluntary manslaughter.” In the instant case counsel for plaintiff in error, in their brief, say: “Under one construction of the statement of facts given by the
5. The 5th ground of the motion for a new trial alleges that the court erred in giving the following instructions to the jury: “ Manslaughter is the unlawful killing of a human creature, without malice, either express or implied, and without any mixture of deliberation whatever, which may be voluntary, upon a sudden heat of passion.” This charge is alleged to be error “for the reason that the court failed to instruct the jury that to constitute the crime of voluntary manslaughter there must be an unlawful killing,” and that the court nowhere instructed the jury that “voluntary manslaughter was the unlawful killing of a human being without malice.” The judge gave in charge to the jury the code definition of manslaughter, and did thus charge them that “Manslaughter is the unlawful killing of a human creature without malice either express or implied, and without any mixture of deliberation whatever, which may be voluntary upon a sudden heat of passion.” If counsel wished a fuller charge on this subject, he should have made request therefor as provided by law.
6. The evidence supports the verdict, and no error requiring a reversal is shown.
Judgment affirmed.