Mixon v. State

123 Ga. 581 | Ga. | 1905

Lumpkin, J.

(After stating the facts.) 1. In the case of Robert Mixon one ground of the motion for a new trial was, that, in view of the recommendation of the jury, the sentence of five years in the penitentiary was excessive. This is not a proper matter for a motion for a new trial.

2. Another ground was that thve court refused a request to give-in charge the following: “It is not necessary, however, that it-appear that it was absolutely necessary to make the assault in order to save life. Therefore when, in a trial for assault with intent to murder, the accused sets up the defense that he inflicted the wounds on the prosecutor to prevent the commission of a felony on his person, and the evidence both of the State and the accused is-directed to the truth of the issue thus made, it is error to charge the jury, in effect, that, in order for the accused to be justified it must appear that the danger was so urgent and pressing at the time of the difficulty that in order to save his own life it was absolutely necessary to kill.” With the exception of the first sentence, this request is a literal copy of the third headnote in the case of Heard v. State, 114 Ga. 90. We of course hold that headnote to be sound law; but it contains a ruling of this court as to what •was an erroneous charge given in the case then under consideration. It is evident that the court in the present case was not called on to inform the jury' that a certain charge was error.

3. The evidence was amply sufficient to support the verdict, and there was no error in overruling the motion for a new trial in the first case.

4. In the case of Andrew Mixon error is assigned because the court refused a written request to give in charge the following: “ If the homicide would have been excusable if the shot had killed the man', the shooting at him without killing is also excusable.” Under the law of this State the distinction between excusable homicide and justifiable homicide has been abolished. Penal Code, § 70. Every homicide which is without guilt is now classified as justifiable. The use of the word “excusable” in connection with a charge in regard to homicide is therefore inapt in this State, and might tend to cause the jury to believe that a homicide, although not justifiable, was yet excusable. -Under the common law this would have been different. The request, in the shape in which it was made, was properly refused.

5. The court was requested to give the following charge: “ It is a well-established maxim of law that it is better to let one hundred guilty persons go unpunished than to punish one innocent person.” The refusal to do so was assigned as error. The request contains an abstract statement slightly modified from the usual expression that “it is better that ninety-nine guilty men should escape than that one innocent person should suffer.” See Boon v. State, 1 Ga. 621. Whether or not this is a sound maxim in morals or sociology, it is not a rule of law suitable to be given in charge by a presiding judge to a jury. We have it on tradition that in the early history of the State a request of this character was made, and the judge of the trial court gave it in charge, but added that in his opinion the ninety-nine guilty men had already escaped.

6. Where the general character of the accused was not attacked or put in issue, there was no error in refusing to charge that the character of the accused is presumed to be good unless'shown to be otherwise by the evidence.

7. Some of the other requests to charge were covered -by the general charge. Only one other need be specially noticed. The court refused to charge, on request, that “Where several are jointly indicted, the conviction of one creates no presumption of guilt as to any of the others.” The two defendants were jointly indicted in this case. Robert Mixon was first tried and convicted. If tin's fact had not appeared or been placed before the jury, it would have been unnecessary to have given any charge on the subject. Nor is it quite clear why counsel for the State saw fit to prove by a witness that Robert had been convicted. As he did so, however, and the two were jointly indicted as principals, and the evidence for the State sought. to show that the two were acting in conjunction, the court, on request, should have informed the jury that the conviction of Robert raised no presumption of guilt against Andrew. See Coxwell v. State, 66 Ga. 309 (3), 315.

In the case of Robert Mixon the judgment is affirmed; in the ■case of Andrew Mixon the judgment is reversed.

All the Justices concur, except Simmons, G. J., 'absent.