22 Ga. 478 | Ga. | 1857
delivering the opinion.
The substance of the testimony in this case, it being a murder case, seems to have been as follows :
On the 22d of January, 1857, a number of persons were at McPherson’s (who was the party indicted,) to assist him in moving a house. Among them were Carter, Spence, and Leggett; Carter being the man killed. At some time in the day, two gallons of liquor were procured, apart or the whole of which, was drunk up by the company. The drinkers became much excited, if not intoxicated, by the liquor, and, in consequence, ^behaved themselves in a noisy, rude, and disorderly manner. The job of moving the house was finished sometime before night. The company had dinner, and the dinner was at a late hour. The company did not leave after dinner. McPherson went to bed. The company still stayed. They “danced'about;” they sang; some of them overturned a bench to the [hazard of a child; two of them, Spence and Leggett,r_an hour and a half or two hours in the night, went into the smoke-house to get something. to car, first having told Mrs. McPherson that they intended to do so, to which she made no reply. Whilst in the smoke house, they made a noise — a board fell. The noise attracted the attention of McPherson ;'_he got out of bed, remarking, that “he would kill some of them;” took down his gun, and went into the yard.w Spence and Leggett hearing his threat, and hearing him take down his gun, ran out of the smoke house, Spence ahead. McPherson was then in the yard. Spence ran by him, and as he did so, McPherson snapped his gun at him.
It does not appear’lhat Mrs. McPherson communicated to Mr. McPherson what Spence and Leggett had told her. The night was dark,5 clear andjjcold. Carter was standing in the dark when shot.
What happened then, was, according to the testimony of the State, this: [Leggett, who was running close behind
Leggett, (one of the State’s witnesses,) swore that he caught the gun to keep McPherson from shooting him ; and that McPherson tried to take the gun away from him; that he was not “jerking” the gun, but that McPherson was; that he was holding on to the gun, to keep McPherson from shooting him; that when he caught hold of the gun, McPherson was five or six feet from the door.
But, according to the testimony of the accused, what happened then was this; McPherson .said, “if you dont keep out of my smoke-house, I’ll show you.” Leggett said, “ I’ll break your damned head with the gun.” When Leggett took hold of the gun, McPherson was going into the house, one of his feet being on the door block, and the other on the plank. Leggett was trying to get the gun away, and gave it a “jerk.” McPherson fell up against the house, and the gun went off.”
Several witnesses for the State swore, that they would not1 believe the witnesses for the accused.
A new witness or two for the accused- swore, that they would believe the witnesses for the accused.
The counsel for the accused requested the Court to charge:
1st. That “the jury are the judgesof the law and the facts,- and are not bound by any charge that the Judge may give;’*
•“2d. That McPherson must have intended to kill some one at the time the gun fired. There must be a co-operation of act and intention to constitute a crime.”
“ 3d. If they believe it to be accidental and not intended by-prisoner, the prisoner should be acquitted.”-
“That the witnesses who were attempted to be discredited,
4th. “ That unless the jury are satisfied beyond all reasonable doubts that the firing of the gun which resulted in Carter’s death, was the voluntary and individual act of defendant, done with the intention of killing Carter, or some other person, then they ought to find the defendant not guilty.”
“5th. That if the jury believe from the evidence, that if the firing off of the gun was occasioned by the struggle between the defendant and Robert Leggett for the gun, they ought to find the defendant not guilty.”
“6th. That if the jury believe from the evidence, that the firing of the gun when Carter was killed, was not intended by defendant, but that tho gun went off by accident, then they should find the defendant not guilty.”
“7th. That if the jury believe that the killing of the deceased was the result of misfortune or accident, unaccompanied with any evil design or intention on the part of the defendant to kill any one when the gun went off, then the jury should find the defendant not guilty.”
“Sth. That if the jury should believe that the firing of the gun was the voluntary act of the defendant, still if it was fired off without any actual intention on the part of the defendant to kill Carter, or any one else, then the jury ought to find the defendant not guilty.”
“9th. That a threat made under excitement, no matter from what cause this excitement emanated, will not authorize the jury to presume that an act done after that threat was :made, was deliberately done, and that a threat which accused would not have made in his cooler moments, or made under excitement of any kind, is entitled to but veiy little weight.”
“10th. That where a threat is proven to have been made which is susceptible of two constructions, the one an innocent, the other a criminal construction, that it is their duty to give the threat that construction most favorable to the prisoner.”
The Court then gave the following charge to the jury:
“That if the prisoner went out of his house with a riotous intent of killing Spence, or any one else, and was foiled in this, and any one else was killed by him, though he did not intend it, that he was guilty; that if Spence and Leggett went into the smoke-house with notice to Mrs. McPherson, the prisoner’s wife, prisoner had no right to use a deadly weapon on them, it being at most, a trespass.
“That if Leggett took hold of the gun to protect himself, he had a right to do so, and if the consequences“were fatal .to Carter, prisoner was guilty. And that if the prisoner did not intend to kill Carter, but went into the yard with evil design towards Spence and intended to kill him, still he was guilty.
“ If you believe from the testimony that prisoner was in the pursuit of a lawful act, and did not use due caution and circumspection he is guilty of involuntary manslaughter.”
The jury found the accused guilty of involuntary manslaughter in the commission of an unlawful act.
The accused then moved for a new trial, and on the following alleged grounds:
1st. That the verdict was contrary to the evidence.
2d. That the verdict was contrary to the law.
3d. That the verdict was contrary to the charge of the Court.
4th. That the Court erred in its charges and its refusals to charge.
. 6th. That the whole charge to the jury was wrong.
7th. That from the tenor of the Judge’s charges an intimation was given of what the Judge thought was proved.
The Court overruled the motion for a new trial.
The accused excepted to the judgment overruling the motion for a new trial; and he assigns, as'errors, that judgment the charges given, the charges refused, and the rejection of the dying declarations of Carter,, the person killed.
Was tiie Court right in rejecting the testimony offered auto, the dying declarations of Carter.
As to the requests: Is it true, that “the jury arc thejudgr es of the law, and the facts, and are not bound by any charge that the Judge may give?”
The 16th section of the 14th division of the Penal Code, is as follows : “On every trial of a crime or offence contained in this code, or for any crime or offence, the jury shall bo judges of the law, and the facr, and shall in every case give a general verdict of “guilty,” or “ not guilty,” and on the ac quittal of any defendant or prisoner, no new trial' shall on any account be granted by the Court.”
“Judges of the law and ihe fact;” — Can the word judges, have one meaning, when taken in connection with the words, “ of the law,” and another, and a greater meaning, when taken in connection with the words, “and the fact?” I am not able to see how it can. That it must have the same meaning, when taken in connection with the one set of words, that it must have when taken in connection with the other, seems to me most manifest.
Does it not follow, then, that the meaning which the word has, when taken in connection with' the words, “ of the law” must be, that the jury shall have the right to decide for themselves what the law is.' I think so. See Ricks vs. The State, 16. Ga. Rep. 603. Holder vs. The State, 5. Ga. Rep. 441.
Suppose, however, the Court give a charge, which truly states the law, are not the jury bound to go by the charge ? Certainly they are; but the reason why they are, is not that the charge is the act of the Court, but that the charge truly states the law. In such a case, it is, perhaps, hardly proper language to say, that it is the charge by which the jury arobound. What they are bound by, is the law; but that happens to be contained in the charge.
Practically, however, the difference between being bound by a charge which truly states the law, and being bound by the law which the charge truly states is not material.
There is a check upon this extensive power of the jury: the Court can veto the verdict, and grant a new trial. I do not know of any other.
The first part of the third request, leaves out of view all the law relating to involuntary manslaughter. But that is
The latter part of this request was, for the Court to say, that the witnesses whom there was an attempt to impeach, were “ still competent.” This part the Court gave, but, with the addition, that the witnesses might be believed, if corroborated. In this addition, is contained an implication, that the witnesses, if not corroborated, were not to be believed.
But suppose impeaching witnesses themselves to be entitled to no credit, what then does their testimony amount to ? Nothing: And therefore, in such case their testimony does not weaken the testimony of the impeached witness; but if their testimony does not weaken his, it does nothing requiring his to be corroborated.
If this be true, as we think it is, it follows that the Court erred in adding what it did to this second part of the request
As to the fourth, the fifth, the sixth, and the eight requests; the same may be said of them, that was said of the first part of the third.
As to the seventh — not being able to know what the “comments” were, we cannot tell whether there was any error in them or not.
But the question, as to how much less is to be the weight, which the threat made under excitement, is to have, is a question for the jury.
Therefore, the Court could not be wrong in refusing that request
As to the charges. The first of these was this: “ That if prisoner went out of his house with a riotous intent of killing Spence, or any one else, and was foiled in this, and any one else was killed by him, though he did not intend it, that he was guilty.”
The latter part of the charge, then, should have been qualified : “Whilst in the prosecution of that intent,” should have been inserted — “And any one else was killed by him,”— whilst in the prosecution of that intent — “ though he did not
But does the evidence warrant this charge at all ? Can it be fairly argued from the evidence, that McPherson went out of his house Avith a riotous intent? To make a riot, there must be the Joint action of tcvo, or more, persons. The cooperation of two, or more persons. If two, or more, men beat a third, the offence may amount to a riot. But if two men fall to fighting each other, the offence cannot amount to a riot. 1. Hawk. C. 65, S. 1. Com. Dig. “ Forcible Entry,” (D. 8.)
•Now are we authorized by the evidence to say, that McPherson, when he went out of the house, did so with the intention or expectation of co-operating with any body in any act of any sort? Was it not peculiarly' action “on his own hook,” that he sallied forth in pursuit of?
The next charge is: “That if Spence and Leggett went into the smoke house, with notice to Mrs. McPherson the prisoner’s Avife, prisoner had no right to use a deadly Aveapon on them;. it being at most a trespass ?
Again, suppose the truth to be, that though Spence and Leggett notified Mrs. McPherson of their purpose, yet that she Jailed to consent that they might accomplish that purpose. In that case, there can be no doubt, that the notice would be, what would not only be of no avail to the State, but Avould be, Avhat might be of much avail to the accused. If Spence and Leggett went into the smoke-house without her consent, it might be, that they were burglars or house thieves. And it is justifiable homicide to kill, in. defending habitation, pro
We think, therefore, that the Court should rather have told the jury, that the notice to McPherson’s wife, was not a fact .that could operate against McPherson, unless he knew of the notice.
The next charge was as follows > “ That if Leggett took .hold of the gun to protect himself, he had a right to do so, .and if the consequences were fatal to Carter, prisoner was guilty.”
It is true, perhaps, that the evidence hardly justifies the supposition, that Leggett was a burglar; but then it is not perhaps equally true, that the evidence does not authorize the supposition, that McPherson might have believed Leg-get to be a burglar. And if McPherson did believe Leggett to be a burglar and the circumstances were such, that they would have justified a reasonable man in entertaining such a belief, then the case, doubtless, was not materially different from what it would have been, of Leggett had really been a -burglar.
We think then, that this charge should have been somewhat qualified; so qualified as to become this: that if Leggett was
This charge was .amiss too,-by being deficient. Apart of the evidence went to show, that Leggett’s object in seizing the gun was not defence but offence, was, to get possession of the gun, and break McPherson’s head with it. And the charge to have been full, ought to have stated the .law applicable to this part of the evidence. Doubtless, the Court will supply the deficiency on the new trial.
The next charge was as follows: “And that if the prisoner did not.intend to kill Carter, but- went into the yard with evil design towards Spenpe, and intended to kill him, still he was guilty.”
This.charge labors under much the same, objection, as that which the first charge was found to labor under.
Suppose the fact to have been, that McPherson had abandoned his intention to. kill Spence, (if such an intention had-ever been his,) before the killing of Carter happened: In that case, it is manifest that the previous existence of such intention, could not be a fact to affect at all the question of his guilt or innocence.
In such case McPherson in struggling to retain his gnu, would be in the commission of a lawful, act, and whether the accidental homicide would he justifiable homicide,, or involuntary manslaughter, in the commission of a lawful act, would depend on, whether in the struggle for the gun, he used due caution and circumspection. The homicide could not be of any higher grade.
This charge, then, ought to hav.ebeen qualified in the manner indicated with respect to the first charge.
The next charge was right Nothing was said against it in this Court.
In disposing of the exceptions already disposed of, we have disposed of all the grounds of this motion, except the seventh.
That ground, we do not think true in point of fact.
A new trial must be had; the grounds have been pointed out in the course of this opinion.
Judgment reversed