55 Ga. 696 | Ga. | 1876
The defendant was indicted for the murder of H. D. Fleming, was found guilty of voluntary manslaughter, and moved for a new trial on various grounds disclosed in the record; the motion was refused on all the grounds, and defendant excepted and assigns error on them all.
The defendant was a policeman, and in company with Jones, another policeman, was on a sidewalk waiting for the time to light or put out lamps on the rising or setting of the moon. Fleming was lying down on the sidewalk, defendant passed by and looked or peeped in his face. Defendant said to him he had better go off or he would be kicked off; deceased made some reply angrily, when defendant said he thought, it was a negro or he would not have made the remark. Deceased was drinking, and the policemen talked after he left about seeing him home or putting him in the guard-house. Deceased went to his brother’s, waked him up, told him he had been insulted, and asked him to go with him and see him have satisfaction. He and his brother went back. On their way, deceased jerked a piece of paling, two or three inches wide and one thick and some four feet long, and carried it along. They soon met the two policemen, good-evening was said, when deceased made some angry remark and struck at Jones with the paling hitting O’Shields. The two policemen ran in directions somewhat opposite; deceased and brother were fired upon, and deceased was killed by a pistol ball. The firing was done at some distance from the Flemings. Jones had a pistol which carried a larger ball than defendant’s. Two balls of different sizes were picked up at the house against which they rebounded or in which they lodged. The smaller ball could be pushed into the hole in the body of deceased made by
Is the verdict contrary to law? If his pistol shot killed. Fleming, was he justifiable in it? There is no pretense that deceased was advancing upon defendant. There is some evidence that he was advancing upon Jones, though the weight of the evidence is that he was not advancing at all. If he was advancing on Jones, O’Shields could not have been reasonably apprehensive that a felonious assault was about to be made upon him, and that he was in danger of life or limb. Whilst, under some circumstances, a policeman might be justifiable in defending his colleague, and even in using deadly
We think, too, that the juror attacked was amply purged of all ground of suspicion of bias by his own affidavit and that of another who heard all he said. What he did say was in jest, and he swore that he was perfectly impartial and on good terms with the defendant.
In reference to the newly discovered testimony, we must regard it as all cumulative. Part of it is in reference to the pistol, whether it was shot off, and how many barrels were loaded, which was fully examined on the trial; and the rest, the sworn affidavit of one Miller, that he was by the side of O’Shields and that O’Shields did not shoot. Whether O’Shields shot or not was the great issue in the case, and evidence was pressed upon that point, and the court was requested to charge in writing thereon, and did charge on several occasions in the course of his charge, the substance, though not the language of the request. It must, therefore, be cumulative merely to
It is needless to add that the court committed no error in providing for the wants of the jury in respect to medicines and necessaries; and that in recharging the jury at their request upon a point of law which troubled them, it is not imperative upon him to go over his whole charge again.
We have thought much over this case, and have given it that attention which its importance demanded. The credibility of the witnesses was for the jury; the conflict was to be reconciled by them; they have weighed and considered and passed upon it; there is enough in the record to authorize their verdict; the law has been given substantially and fully to them; no error has been committed by the court which, in our judgment, injured the defendant; he has had a fair trial, and we feel constrained to let the verdict stand.
Judgment affirmed.