181 Ga. 698 | Ga. | 1936
Julian, alias Pat, Patterson was convicted of the murder of Virginia Walden. He filed a motion for new trial, which contained the general grounds and forty-four special grounds. This motion was overruled, and he excepted. The indictment was divided into five counts. Code of 1933, § 37-701. Each count charged the defendant with the murder of the same person upon the same date, and differed only as to the manner of its commission. Count 1 alleged that he did murder Virginia Walden “by causing her by his acts and conduct to jump from an automobile,” the acts and conduct causing her to so jump being unknown to the grand jurors, but being alleged by them to have been of such nature as to cause Virginia Walden to jump “in her own defense,” whereby she sustained injuries from which she died. Count 3 alleged that he did murder Virginia Walden, in that “he did inflict injuries, and was instrumental in the inflicting of injuries, upon the person of Virginia Walden, the exact manner of inflicting which is unknown to this grand jury,” from which she died. Count 3 alleged that he did murder Virginia Walden, in that “he did drive a certain Chevrolet coupé automobile into and against the body of Virginia Walden,” inflicting injuries from which she died. Count 4 alleged that he did murder Virginia Walden, in that, while in the company of Virginia Walden in a Chevrolet Coupé (same being a motor vehicle) he “did attempt to commit a violent injury upon” her person, “and did lay his hands unlawfully upon her person, and did attempt to kiss and hug and make amatory advances to her,” and did drive his car upon the highway leading through Indian Springs in such a manner “and in such a direction away from Indian Springs that his conduct led her to think that he was carrying her away to some spot where he would continue his unlawful advance toward her with intent and purpose to commit an unlawful assault upon her body,” thereby causing her by such conduct “in her fear and terror” to protect herself from said threatened assault by jump
1. When qualifying the jury on their voire dire the solicitor-general read to them from the indictment, reading only count 3. By reason of this, counsel for defendant objected to any evidence being offered in proof of the other counts of the indictment, and moved that the State be limited to trial on the third count; which motion was overruled. In the first, second, third, and fourth grounds of the motion for new trial error is assigned on the ruling which allowed the introduction of evidence in support of all the counts of the indictment, on the refusal of the court of a request to charge the jury not to consider the first, second, fourth, and fifth counts, and on the court’s reading in charge to the jury all the five counts. There is no merit in these grounds. There is no law requiring the solicitor-general to read the indictment to the jury when qualifying them on their voir dire. While the indictment is in five counts, they are all subtantially the same, some of them being stated more in detail; and the count that was read to the jury contained the essential allegations. There is no contention that the indictment was defective in that it contained more than one count. No demurrer to it was filed. There is no statute in this State which prohibits the joinder of several offenses of the same class or species in different counts of the same indictment. Davis v. State, 57 Ga. 66; Williams v. State, 107 Ga. 693 (33 S. E. 641); Webb v. State, 177 Ga. 414 (170 S. E. 252). The solicitor-general stated that he was trying the defendant on all the counts of the indictment; and it appears that the judge read the entire indictment to the jury. In Lascelles v. State, 90 Ga. 347 (4) (16 S. E. 945, 35 Am. St. R. 216), it was held that several counts may be joined in an indictment charging forgery, and “at the trial the State would not, as a matter of law, be
2. The judge allowed the State- to introduce in evidence a photograph of the deceased, over objection that it was “irrelevant, immaterial, illustrated no issue in the case, and was prejudicial.” Error is assigned on the ground that there “was no evidence as to when or where said photograph was made, nor as to how old deceased was when said photograph was made.” The general objection, which from the motion for new trial appears to have been made by counsel for the defendant at the time the evidence was introduced, that it was “irrelevant, immaterial, illustrated no issue in the case, and was prejudicial,” did not apprise the court of the specific objection that it had not been shown when or where the- photograph was made, or how old the deceased was at the time it was taken; and the fact that these reasons are stated in the motion for new trial, is not sufficient to raise the question before this court. Ga. R. Co. v. Daniel, 135 Ga. 108 (2) (68 S. E. 1024); Legg v. Legg, 165 Ga. 314 (140 S. E. 868). The attention of the court must be called to the .specific ground of objection at the time the evidence is offered, and the failure to do so will be considered as a waiver. Andrews v. State, 118 Ga. 1 (43 S. E. 852), and cit. The photograph was identified as a picture of the deceased, by her mother. One of the counts of the indictment alleged murder, upon the allegation that the defendant had driven his automobile upon the deceased at a certain time and a certain place, which acts caused her death. A witness for the State testified that on the night of the alleged homicide he saw a car run against and knock down a girl on the side of the road. He did not know her name, nor did he learn it. Counsel for the State exhibited to him a photograph identified as that of the deceased by her mother; and he testified that the picture was the likeness of the same girl he saw defendant with at Indian Springs on the night of the alleged homicide, they being in a car, and a likeness of the same girl he saw knocked down and injured in the road. 'The photograph was thus admissible for the purpose of identification.
3. The court charged the jury as follows: “And if you find from the evidence establishing the homicide that there were no facts of justification, extenuation, or mitigation, you would have
4. Error is assigned upon the following charge of the court: “If you believe that the State has not made out its case to your
5. The judge charged the jury as follows; “The only element of manslaughter which is involved in this case is .that of involuntary manslaughter in the commission of an unlawful act,” and refused a request to charge as follows: “Involuntary manslaughter in the commission or performance of a lawful act, where there has not been observed necessary discretion or caution, shall be punished as for a misdemeanor.” There was evidence in the case from which the jury could have found that the acts of the defendant were lawful, but not under the circumstances done with due caution and circumspection, which warranted the requested instruction; and the charge given eliminated this phase of the case from the consideration of the jury, and amounted to an expression of an opinion that the acts of the defendant were unlawful. The court therefore erred in giving the charge complained of, and in refusing to charge as requested.
6. The judge gave the following charge: “I charge you, gentlemen of the jury, if you believe beyond a reasonable doubt that the defendant, while he and Virginia Walden were riding together in a Chevrolet automobile on the road described in the indictment, without her permission or consent he did attempt to commit a violent injury on her person by laying his hands upon her, and did attempt to hug and Mss and make amatory advances to her, and by the manner of his driving the automobile caused her to fear that he was intending to continue his unlawful and lustful advances toward her with the intent to commit a criminal assault upon her body, he thereby caused her to fear for her safety and to jump from the automobile, and that such actions upon the part of the defendant were unlawful and in their consequence naturally tended to cause the deceased to so jump from the automobile, and in so doing she fell from the roadway and received the injuries from which she died, such offense on the part of the defendant is deemed murder, and you should so find by your verdict.” Error is assigned on various grounds. To find the defendant guilty of murder in causing the death of the deceased by reason of her
“A man may throw himself into a river under such circumstances as render it not a voluntary act, by reason of force applied either to the body or the mind. It becomes then; the guilty act of him who compelled the deceased to take the step. But the apprehension must be of immediate violence, and well grounded, from the circumstances by which the deceased was surrounded; not that you must be satisfied that there was no other way of escape, but that it was such a step as a reasonable man might take.” Regina v. Pitts, 174 Eng. Rep. 509. The act of the deceased in jumping from the car being in its nature voluntary, the above test must
(1) Where one commits an assault upon another, which assault is not punishable by death or confinement in the penitentiary, and the other because of said assault reasonably fears or reasonably apprehends that a felonious assault is about to be committed upon his person, and to avoid such assault does that which a reasonably prudent person would have done under the circumstances, and such act of avoidance results in his death; if the act of avoidance is one which in its consequences naturally tends to destroy the life of a human being, the offense is murder; if the act of avoidance is one which in its consequences does not naturally tend to destroy the life of a human being, the offense is involuntary manslaughter in the commission of an unlawful act.
7. The charge, “In respect to involuntary manslaughter, . . if you believe beyond a reasonable doubt that the defendant committed an assault upon the deceased by the unlawful laying of vio
8. The judge charged the jury: “Legal malice is that intention unlawfully to take away the life of a human being where the law neither mitigates nor justifies the killing. Malice, in so far as the allegation of murder is concerned under this indictment, is essential to be proved or established in the case to your satisfaction beyond a reasonable doubt, by the State proving that the killing occurred in some manner as alleged in the indictment, which, if such proof is not rebutted by the defendant’s statement, and it does not appear to have been rebutted by other evidence in the case, either produced by the defendant or the State, the presumption of malice would remain; otherwise it would not, and it would be necessary for the State to establish the proof of malice beyond a reasonable doubt before there would be a conviction under this indictment.” The court by the expression, “and it does not appear to have been rebutted by other evidence in the case, either produced by the defendant or the State” expressed an opinion that the presumption of malice arising from a killing had not been rebutted by evidence produced by the defendant or the State. Had the word “if” been used after the word “and” and before the words “it does not appear” in the charge, it would not have amounted to an expression of opinion. While we are cognizant of the rule that a mere lack of verbal precision or a slip of the tongue which could not have misled the jury is not cause for a new trial, we are of the opinion that the charge as given here was misleading, and that if taken literally, as it might have been, it invaded the province of the jury, and was prejudicial.
10. Error is assigned on the failure of the court to charge the jury on the law of misadventure and accident as a defense in criminal eases. As this was one of the main theories of the defense, and was involved by the evidence, it was error to omit to charge the law relative thereto, with or without a request. Conoly v. State, 10 Ga. App. 822 (74 S. E. 285).
11. The assignments of error not specifically dealt with are without merit, or are not likely to occur on another trial, in view of the rulings heretofore made.
Judgment reversed.