23 Ga. App. 58 | Ga. Ct. App. | 1918
Lead Opinion
(After stating the foregoing facts). The 5th special ground of the motion for a new trial is as follows: “Because the court erred, as movant avers, in failing, and declining to submit to the jury the question of whether or not the defendant was guilty of involuntary manslaughter in the' commission of an unlawful act, and in failing and declining to instruct the jury as to the law upon this subject. "It is stated as a matter of fact that a written request was presented on behalf of the defendant for this charge, which request was submittted before the beginning of the general charge.” The evidence shows that the defendant and the deceased, a Chinaman named Jung, had some dispute about a concession at the Southeastern Fair which was being operated by the Chinaman. They had some words,' and the defendant turned and was leaving the Chinaman’s concession when the Chinaman made some remark. The defendant turned back and asked, “What' did you say?” The
In Taylor v. State, 108 Ga. 384, 390 (34 S. E. 2.), where the weapon used was “a piece of wood”, the Supreme Court said: “It was not affirmatively shown that the “piece of wood” was a weapon likely to produce death, and the mere fact that death resulted from its use did not necessarily make the killing murder. . . ‘There can be no involuntary manslaughter where the intention is to kill. If there is any evidence to cause a .doubt, even though slight, (as to the intention to kill, the court should give in uharge the law of-involuntary manslaughter.’ Of course a prisoner’s statement, if believed by the jury, may constitute the basis of such a-doubt, as well as the sworn evidence.” Jackson v. State, 76 Ga. 473, was cited. In Chapman v. State, 120 Ga. 855, 857 (48 S. E. 350), where the weapon used was “a brick, thrown at the deceased,” the-court said: “The evidence is silent as to the size and weight of the brick, and as to whether it was a deadly weapon, or was used
The evidence in the instant case failed to disclose that the “billy” with which the deceased was struck was either a deadly weapon or was used in such a manner as would ordinarily have produced death. It does appear that the weapon was hastily drawn and the blow quickly delivered, and that almost immediately the defendant got down on the ground, or floor, in an effort to revive the unconscious man. The defendant disclaimed any intention to take the life of the deceased.
Under the facts as shown by the record, and the authorities cited, we think that thq court should have charged the jury upon the subject of involuntary' manslaughter in the commission of an unlawful act, and the failure to do so was erroneous.
Several of the grounds of the motion for a new trial complain of the admission, over objection of the defendant duly made, of the testimony of a number of witnesses showing the good character for peaceableness of the deceased Chinaman. The State insisted that this evidence was admissible because the defendant—so the State claims—had put the deceased’s character in issue. We can not agree with this contention of the State. The defendant did not put in issue the character of the deceased. In the defendant’s statement at the trial, in order to support his defense of delusional insanity, he said that since he had a difficulty with two Chinamen in Mississippi, he had always been afraid of them—the Chinese people; that he had always known they were treacherous, and had never allowed them on the fair grounds in his career in Mississippi. It would seem from the language used in Crawley v.
Beluctant as we are to disturb the verdict of the jury, the defendant is entitled to a fair and impartial trial according to the forms of the law. The admission of this illegal testimony, delivered by a number of prominent and influential citizens, was unquestionably harmful to the defendant.
In connection with these grounds of the motion it is stated that one of the counsel assisting in the prosecution stated in open court, in the hearing of the jury, that he had fifty or one hundred more witnesses who would swear exactly the same thing, that is, as to the good character for peaceableness of the-deceased. It does
Because of the errors hereinbefore pointed out a new trial is necessary. The other rulings stated in the headnotes require no elaboration. The assignment of error upon the refusal of a continuance, and the general grounds of the motion for a new trial, are not passed upon.
Judgment reversed.
Concurrence Opinion
concurring specially.
I concur with my associates that, under the facts of the case, including the statement of the accused, the court committed reversible error in refusing to instruct- the jury upon the law of involuntary manslaughter, a timely written request therefor having been presented. I am, however, not at all sure that the admission of the testimony as to the good character of the deceased Chinaman for peaceableness was erroneous, under all the peculiar and particular facts of this case. In his statement to the jury the defendant asserted' that on a former occasion in California, while asleep, he had been sandbagged by a couple of Chinamen and left in an unconscious condition; that afterwards, on the State Fair grounds in Mississippi, he was badly beaten over the head with some kind of a weapon by two Chinamen, and “I have been always afraid of them—'the Chinese people. I have always known they were treacherous, and I have never allowed them on the fair grounds in my career in Mississippi. . . . Last year, or year before last, I was associated with this fair (of the Southeastern Fair Association of Atlanta), and I absolutely refused Chinese concessions, on account of my fear [of] being thrown with them. . . Since my trouble in California I have.always been afraid of the Chinese race. I know them and have heard of them, and in my condition—This fellow [the deceased Chinaman], he used Chinese language I could not understand, and it appeared to me that he was trying to injure me with this weapon” (a two or three-pronged iron instrument used in cooking ice-cream cones). The defendant in his statement further said that without any'provocation on his (the defendant’s) part, the deceased, on the occasion of the fatal difficulty, “became very much enraged and excited, and then he struck at me with this [the cooking-iron], and I knocked the lick off with my arm, then'