187 Ga. 156 | Ga. | 1938
Cliff Pyle was convicted of murder in the killing of John Hibberts by shooting him with a shotgun, and was sentenced to life imprisonment, as recommended by the verdict. His motion for a new trial was overruled, and he excepted. The motion included assignments of error on portions of the court’s charge and on refusal of requested charges. The killing occurred at the home of the defendant late in the afternoon, or about dark, on November 7, 1937. The defendant and the deceased had previously been on friendly terms. They lived in the same neighborhood, and their wives were sisters. The evidence for the State tended to show
The defendant’s statement was as follows: “On the 6th of November, John Hibberts come to my house with my wife’s sister, and he says ‘Marvin Jones told me that you accused me of stealing
There was some evidence-to the effect that the deceased took a knife from his pocket and opened it while in the house, and that after he was killed an open knife was found about a foot and a half from his left hand. Much other evidence was introduced, but the foregoing, including the defendant’s statement, will be sufficient to illustrate the legal questions presented.
In the brief of counsel for the plaintiff in error it is stated that there was sufficient evidence to authorize the verdict if the jury believed the testimony of L. W. Hibberts, which they “apparently did.” In view of this statement, the general grounds of the motion for new trial are treated as abandoned.
In special ground 1 the defendant assigned error upon the refusal of a request to charge on the subject of self-defense and defense of habitation, in the language of the Code, § 26-1011. In grounds 3, 4, 5, and 6 the defendant complained of the refusal of other requests to charge, based upon the theory of justifiable homicide in defense of habitation. There was no error in refusing to give any of the requested charges referred to in these five grounds. Neither the evidence nor the defendant’s statement was sufficient to present any issue as to justifiable homicide in defense of habitation, and it appears from the general charge that the jury' were fully instructed as to the law of self-defense. Rumsey v. State, 126 Ga. 419 (4) (55 S. E. 167); Holton v. State, 137 Ga. 86 (4) (72 S. E. 949); Devereaux v. State, 140 Ga. 225 (6) (78 S. E. 849); Waters v. State, 146 Ga. 102 (3) (90 S. E. 712); White v. State, 2 Ga. App. 412 (58 S. E. 686). The defendant stated generally, “I had to shoot there and had to protect my home and my wife and that little girl in there,” but from the particulars given by him it is apparent that the transaction did not involve any attack or invasion upon habitation. The case differs on its facts from Horton v. State, 110 Ga. 739 (4) (35 S. E. 659); Palmour v. State, 116 Ga. 269 (42 S. E. 512); Downs v. State, 175 Ga. 439 (4) (165 S.
The movant complains that the court erred in refusing to charge the jury as follows: “To manifestly intend an act implies more than mental resolution to do the act. The mental resolution must find some form of expression before it becomes manifest. In cases involving force, the slightest manifestation of intent to do the act would be an attempt in the accomplishment of the act.” While identical language is contained in a former decision by this court (Taylor v. State, 121 Ga. 348, 357, 49 S. E. 303), under the facts of the present case the refusal to include the quoted statement in the charge to the jury was apparently not prejudicial to the defendant, and is not cause for a reversal.
In special ground 7 the movant complains of .the refusal of a reqitest to charge on the subject of reasonable fears. It appears from the record that the jury were instructed in a general way in regard to such defense. The requested charge wholly omitted the principle that to justify a killing under the doctrine of reasonable fears it must appear that the homicide was not committed in a spirit of revenge. As was held in Johnson v. State, 173 Ga. 734 (1), 740 (161 S. E. 590), “This made the instruction incorrect. It did not state an accurate and correct principle of law upon the subject of reasonable fears as justification for a homicide.” See also Head v. State, 168 Ga. 843 (149 S. E. 145); Hall v. State, 133 Ga. 177 (3) (65 S. E. 400). Accordingly, in the present case the court did not err in refusing the requested charge on the subject indicated.
In ground 8 it is contended that the court erred in charging the jury as follows: '“I charge you that you are the judges of both the law and the facts, in criminal cases. The law you take from the court as given you in charge, and the facts you get from the witnesses who testify, and from the statement of the defendant, and apply the law thus given you in charge to the facts ascertained in that way, and make a verdict which speaks the truth.” It is insisted that this charge was limited to the testimony of -witnesses and the statement of the defendant, and was thus erroneous in that it excluded from consideration “the photographs which were introduced in evidence by the defendant.” The photographs were not embodied in the record as approved and transmitted to this
In ground 9 the movant assigned error upon the following charge: “I charge you that you may look to the evidence and see whether the deceased had made some unjustifiable assault less than a felonious assault upon the defendant, and if so, see whether this assault upon the defendant on the part of the deceased had generated upon the defendant this uncontrollable passion supposed to be irresistible, and see whether he acted under the influence of that passion and not under the influence of revenge, and if you find him guilty, you could not find him guilty of murder, but would find him guilty of voluntary manslaughter, provided he was not justifiable in what he did, if he did anything.” It is contended that this charge had the effect of withdrawing from the consideration of the jury “all other cause of uncontrollable passion supposed to be irresistible other than that which might have been generated by an unjustifiable assault upon the defendant,” whereas under the evidence the jury might have found that there were “other equivalent circumstances to justify the excitement of passion,” such as the entry of the' deceased into the defendant’s home and the profanity and abusive language then and there used by the deceased in the presence of the defendant’s wife. Whether or not the additional facts here referred to might have been considered by the jury as “other equivalent circumstances,” within the meaning of the law, the charge was not cause for a new trial, in view of the fact that immediately preceding'it the judge charged the jury upon the subject of voluntary manslaughter in the language of the Code, with the following added: “Now, this is the law of voluntary manslaughter that you may apply to the facts of this case and determine whether or not, if he is not guilty of murder, he would be guilty of the offense of voluntary manslaughter.” The charge of which complaint is made did not have the effect of withdrawing or qualifying the previous instruction, and was not erroneous as contended. As to this ground, the ease differs from Battle v. State, 133 Ga. 182 (2), 185 (65 S. E. 382), where the judge specifically
In ground 10 error is assigned upon the charge as a whole, on the ground that “the same was harmful, erroneous and prejudicial to movant for the reason that nowhere in said charge did said court instruct the jury as to the right of the defendant tó protect his home or as to his right in reference to trespassers on his property.” Under the rulings stated in the second division of this opinion, there is no merit in this ground. Furthermore, an exception to an entire charge is not good unless the charge as a whole is subject to such exception; and this was not true in the present case. Baker v. State, 154 Ga. 716 (3) (115 S. E. 119); Cutis v. Geiger, 176 Ga. 864 (5) (169 S. E. 127).
The court did not err in refusing a new trial.
Judgment affirmed.