| Ga. | Jun 12, 1893
1. We are aware of no law which constrains the judge who presides in a trial for murder, to instruct the jury not to discuss the case among themselves nor to allow any one else to speak to them about it. The judge may give such instruction when he thinks proper to do so, and the presumption is that he will give it whenever he deems the circumstances call for it. In this case the jury were kept together in charge of an officer from the time they were impanelled until the verdict was rendered. There is no cause for suspecting that they either discussed the case among themselves improperly, or that they were spoken to concerning it by any outside person, or that the officer in charge of them failed to perform his whole duty.
2. In relation to the judge leaving the bench and absenting himself from the court-room for a necessary purpose during a short interval, without suspending the trial on account of his absence, this is sufficiently treated of in the second head-note.
3. The actual grade of a homicide is to be-ascertained by the jury on all the facts in evidence and with the aid of a proper charge from the court touching the law of the case. It is not the duty of the court to decide in the first instance, as a question of law, whether an attempt by an arresting officer and his posse to commit a serious personal injury on the. accused, would reduce a killing done on the occasion to manslaughter. Under some circumstances it would, and under others the killing would even be reduced to justifiable homicide. The court’s charge on the law should be such as to enable the jury to distinguish, one from another, all the grades of homicide which the jury under the facts of the particular case ought to investigate and .consider, but beyond this the court could not go without trenching upon the province of the jury. They are to determine whether
4. Pritchett, the accused, did not participate in the first resistance offered to the arrest of Hubert. There were indications in the evidence that that resistance was made by a combination of several persons, and that some of these together with Pritchett participated in the second resistance. The second stood in close connection with the first in point of time, the interval between them being very short. We agree with the trial judge that the circumstances and conduct attending the first were admissible in evidence against Pritchett who, although he took no part in the first, shared, with some who did, in the work of making the second, and whilst so engaged committed the homicide. We also think that the court did not err in charging the jury upon the subject as set forth in the official report, though we must admit that as to mere style and clearness the charge was not altogether felicitous.
5. There was some direct evidence that the killing was done by the accused. This being so, the court properly declined to charge the jury as requested on circumstantial evidence, the request assuming that the evidence as to the person who did the killing was circumstantial only.
6. It is not error for the court in its charge to the jury to specify the turning points in the case and designate them as such. The motion for a new trial, after stating what the court charged on this subject, complains of it as error “ in that the court expressed an opinion as to what were the turning points in the case.” The motion fails to mention or suggest any others as turning points, or to say that these were not. The complaint is that the court expressed an opinion at all as to what were the turning points in the case. Were it alleged that
7. At first view what the court charged on the subject of flight, escape and recapture does certainly appear as infringing upon the rule of law which forbids the judge to intimate his opinion on the evidence or what it establishes; but when the whole paragraph is read to its close, it is reasonably apparent that the court meant to state to the jury, not what the evidence was or what it proved, but what the State claimed it was and established. To express this meaning the terms of the proposition contained in the paragraph must, it is true, be taken in an order which is inverted and not the most natural. What should have been in the court’s mind first was expressed last, but this does not vitiate the instruction if the meaning at which we have arrived is the true one, and we think it was.
8. In silencing the defendant’s counsel touching an irrelevant fact not in evidence, which was as tcfthe object of confining the accused in Pulton county jail rather than that of DeKalb county, the presiding judge stated from his own knowledge what the object was, the confinement in that jail having been by the court’s order. Undoubtedly this trivial matter is no cause for a new trial.
None of the points or questions raised by the motion for a new trial, whether mentioned in this opinion or not, furnish any legal reason for trying the case over. The court did not err in refusing a new trial.
Judgment affirmed.