183 Ga. 353 | Ga. | 1936
Movant complains that the court erred in charging the jury as follows: “I charge you that there are three verdicts that you may write in this case: First, we, the jury, find the defendant guilty; and if you stop there, the penalty will be death. Or, second, we, the jury, find the defendant guilty and recommend mercy, in which event the punishment would be life imprisonment. Or, we, the jury, find the defendant not guilty.” The criticisms are that the charge “was not sound as an abstract principle of law;” that the charge was argumentative in that it instructed the jury that no less offense was involved than murder, that it was therefore confusing and misleading to the jury, and that it took from the consideration of the jury the lesser offenses of involuntary and voluntary manslaughter. First it should be stated that the contention that the charge was argumentative is without merit. It obviously was neither confusing
(1) The law of voluntary manslaughter was not involved either under the evidence or under the statement of the accused. That is true for the reason that there is nothing whatever to be found in the evidence or in the statement which would authorize a finding that the accused killed the deceased without malice, or that the deceased was killed under any of the principles of voluntary manslaughter as defined in the Code, § 26-1007. The evidence for the State makes a clear case of intentional killing with malice aforethought. Under the State’s evidence the deliberate intention to kill is shown by direct evidence. The accused declared just before the fatal stabbing, at a time so near the actual killing as to fall within the res gestse, and while under the influence of intoxicating liquor, that he was “pretty bad,” that he was “the meanest guy in town,” and that he would “kill somebody” that night. He asked the deceased, “Don’t you believe I will cut your head off?” The deceased replied, “Yes, I believe it.” The accused “then raised his hand and struck the deceased.” The deceased received his mortal wound and died before a doctor could reach him. Neither the State’s evidence nor that of the accused shows that the deceased did anything to the accused. There were two theories: (a) Death by accident — verdict, not guilty, (b) Malice implied from an abandoned and malignant heart — verdict, guilty of murder with or without recommendation.
(2) The law of involuntary manslaughter is not involved either under the evidence or under the statement of the accused. Nowhere is it suggested that the accused killed the deceased without any intention to do so. That is a vital element of involuntary manslaughter. Under the evidence for the State it was a plain case of murder. Under the statement of the accused he was entirely guiltless. He insisted that he did not kill the deceased intentionally or otherwise; that there was no ill feeling between them; that no altercation between them had occurred; that the deceased was accidentally killed in a tussel with a third party, Sissom, struggling over a bottle of whisky while Sissom was endeavoring to open the bottle with a knife. Clearly the only construction possible under the statement of the accused is that the
Movant insists that under the principles ruled in Wrye v. State, 99 Ga. 34 (25 S. E. 610), it was the duty of the court to submit to the jury the law of involuntary manslaughter, and that the court’s refusal to do so was error. The request was in the following language: "Involuntary manslaughter shall consist in the killing of a human being without any intention to do so, but in the commission of an unlawful act which probably might produce such a consequence, in an unlawful manner.” The request is not accurate, but that may be waived as an inadvertent error in copying the request. The facts in the Wrye case were plainly different from the facts in this case. In the Wrye case there was a stab in the left breast and one hand was cut through the fleshy part. The deceased died "within a few days” from the wound. The defendant stated that the deceased, without provocation, made a violent attack upon him on the public highway, and he, being old and feeble, was unable otherwise to resist the violent attack, and that he stabbed the deceased with no intention to kill him. In this case neither the evidence nor the statement of the accused shows any attack on the accused by the deceased, and no offensive conduct whatever. The stab was in the neck, a vital portion of the body, and death ensued almost immediately. The defendant had been carrying a knife in his hand during the night of the homicide, and was heard to make several remarks with reference to killing 'some one, and of his general character for violence. It is insisted that no description of the knife with which the wound was inflicted is in evidence, and that there was no description of the character of the wound. Such evidence as that just mentioned is material in cases where applicable to show intent, and whether or not the killing- was done with or without malice. Where one
The second headnote is not elaborated.
Movant contends that the court erred in refusing to grant a new trial on the ground of newly discovered evidence. Grounds for new trial based upon newly discovered evidence are not favored by the courts. Ivey v. State, 154 Ga. 63 (5) (113 S. E. 175).
The fourth and fifth headnotes are not elaborated.
Judgment affirmed.