58 Ga. App. 243 | Ga. Ct. App. | 1938
Harvey Nelson was indicted for the murder of his wife. He was convicted of voluntary manslaughter, and he excepted to the overruling of his motion for new trial. The indictment charged that the defendant “did kill and murder by striking, hitting, beating, and wounding the said Mrs. Harvey Nelson with his fists and with a blunt instrument to the grand jury unknown, which the said Harvey Nelson then and there held and giving to the said Mrs. Harvey Nelson then and there a mortal wound of which mortal wound the said Mrs. Harvey Nelson
The defendant introduced several witnesses who testified to the fact that Mrs. Nelson drank intoxicating liquors to excess, and that she stayed under their influence most of the time. This evidence was not contradicted by any evidence of the State. Two witnesses for the defendant testified to having seen her up, walking about, on Wednesday before her death on Thursday. The evidence for the State does not make it clear when Mrs. Nelson took to her
The defendant contends that there was a variance between the indictment and the proof, because the evidence showed that the death was not occasioned by the whipping alone, but that it was the disease of the wife which made the assault mortal, and the fact that she was diseased at the time of the whipping should have been averred in the indictment, in order that the defendant might have understood the precise nature and character of what he was charged with, and thus be enabled to prepare his defense. We think the indictment sets out in full and distinct terms the acts of the defendant which hastened the death of the deceased; and we do not think it necessary for the indictment to allege the state or condition of the body of the deceased at the time of the whipping, or causes merely natural, then existing, which tended to make the acts of the prisoner more dangerous and fatal. Thus, when the indictment alleges the criminal acts of the defendant which constituted the whipping, it has alleged the efficient proximate cause of the death. There was no variance because the indictment did not allege whether the deceased was a sick or a well person, and what was the name or character of the disease, as shown by the testimony, from which the deceased was suffering. It alleged what the defendant did. It alleged his acts which the State claimed were criminal. What the deceased did, or. what were her natural frailties, were not necessary allegations in the indictment. Com. v. Fox, 73 Mass. 589; Burnett v. State, 82 Tenn. 439, 443.
While, if the defendant actually knew or had reason to know that his wife was ill, and was thereby put in such a weak and feeble condition that his attack would endanger her life, or hasten her death, the jury would have been authorized to find him guilty of murder, and while under the evidence the defendant might also have been convicted of involuntary manslaughter, we are unable to hold that a verdict of voluntary manslaughter was supported. This is true as to both counts of the indictment. As to whether the evidence was sufficient to make out any offense under the charge that the defendant failed and refused to call a doctor for his wife, the following eases should be consulted: Bradley v. State, 79 Fla. 651 (84 So. 677, 10 A. L. R. 1129); Stehr v. State, 92 Neb. 755 (139 N. W. 676, 45 L. R. A. (N. S.) 559, Ann. Cas. 1914A, 573); State v. Barnes, 141 Tenn. 469 (212 S. W. 100); Com. v. Breth, 44 Pa. Co. Ct. 56; State v. Staples, 126 Minn. 396 (148 N. W. 283); Westrup v. Com., 123 Ky. 95 (93 S. W. 646, 6 L. R. A. (N. S.) 685, 124 Am. St. R. 316). See note in 10 A. L. R. 1137. It is not necessary at this time to determine this question. “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, or involuntary, in the commission of an unlawful act, or a lawful act without due caution and circumspection.” Code, § 26-1006. “In all eases of voluntary manslaughter, there must be some'actual assault upon the person killing, or an attempt by the person killed to commit a serious personal injury on the person killing, or other equivalent circumstances to justify the excitement of passion, and to exclude all idea of deliberation or malice, either
In the motion for new trial complaint is made of the following charge of the court, as containing an expression or intimation of opinion: “If the homicide was unlawful, and if there was no intent to kill and no malice, and it was without any mixture of deliberation whatever, but was in the commission of an unlawful act, the offense would be involuntary manslaughter.” This excerpt from the judge’s charge seems to be in the language of Cann on Requests to Charge, § 712. The State’s case was of course based upon the theory of homicide. The defendant offered evidence which tended to show that his wife died from natural causes. Whether or not there was a homicide or killing in the present case was one of the principal issues, and it would be perhaps better if the judge would avoid the use of this expression as above quoted. We are reversing the judgment on other grounds, and further comment on this exception is not deemed necessary. “The judge will doubtless so qualify any such expressions on the next trial as to place them beyond the possibility of criticism.” Patterson v. State, 181 Ga. 698, 702 (184 S. E. 309).
The rulings announced in headnote 4 do not require elaboration.
Judgment reversed.