15 Ga. 223 | Ga. | 1854
delivering the opinion.
Such a showing, without explanation, would entitle the prisoner to a new trial. But the Juror was heard, by affidavit, in his own vindication; and he states, that he expressed the opinions attributed to him, under the influence of reports, and from excitement; that they did not prejudice or bias his mind, or affect his verdict; that he was prepared to hear the evidence patiently, and find a verdict according to all the evidence, &c.; that all his fellow-jurors were in favor of a verdict of guilty, upon retiring to the jury-room, and he alone had doubts and hesitation, until they “were removed, by carefully considering the evidence”. Some of his fellow-jurors, by affidavit, corroborate this last statement.
It is not pretended that there was- any evidence of express malice to be found in this record. But the case is put entirely upon the evidence of implied malice, which it is said appears there.
Our Penal Code declares, that “ malice shall be implied1 where no considerable provocation appears, and where all the-circumstances of the killing show an abandoned and malignant heart.”
Let us inquire then, 1. Was there no considerable provocation here ? 2. Did the circumstances of the killing show, an abandoned and malignant heart ?
We learn from the record, that at the time when this difficulty commenced, a buggy of the prisoner, or one that he had in charge, stood before the door of a grocery in the town of Perry, in which the prisoner was ; that the decedent recklessly, (as there was abundance of room for him to have avoided it,) struck against this buggy with the wheel of a wagon which he was driving, and did some damage to it; that information was communicated immediately to the prisoner, who instantly loft the house, hastened rapidly after decedent, who was moving on with his team, and overtook him, after going some 150 yards/
And now to answer the questions which we submit, let us look to the strongest testimony against the prisoner, for what ensued, viz: that of Jesse Cooper, the principal witness for the State. What do we learn from Aim of the provocation ?
He testifies, that the prisoner ran up, as we have stated, seized one of the decedent’s horses, stopped the wagon—in' his passion, cursed decedent for breaking his buggy, and demanded pay
We do not hesitate to say, that such circumstances show a considerable—a very exasperating provocation. They present a stronger case of provocation, in our opinion, than that which appears in Lanure’s case, (1 East, P. C. 233,) where one, violently, and with insolence, whipped the horse of another out of Ms way, and the rider alighted, and immediately, in the fight
To this testimony of Cooper, let us add the evidence of Franks, going to show decedent’s efforts to get the hammer ; the evidence that decedent must have been meeting prisoner afterwards, from the fact that the board picked up by the latter was near the store, and that decedent was going towards the store when Ray met him ; the testimony of Dr. Holt, that the prisoner, from his position, could not have known whether or not decedent had gotten the hammer, (which leaves the inference that he may have supposed decedent had it,); the statements of the same witness, that they “were both meeting each •other”; that “he (decedent) proceeded to meet Ray”, &c. ; that “one seemed to be as anxious for the fight as the other”, &c.
These facts greatly strengthen the view we have taken, and to our minds, make the conclusion very plain, that there was .considerable provocation on the part of the decedent; that there was great heat of blood between the parties, and something of mutual intention to fight.
. We think such assault may be found in this case, in the intention of the decedent to resort to violence, when it was unnecessary ; is to be found in the’ evidence which shows a mutual design to fight, and in the fact that the decedent was approaching the prisoner in furtherance of this design.
This is commonly held to be evinced by a weapon, or other appliance likely to produce death, and by brutal and bloodthirsty use of such instrumentality.
In this case, there was no bowie-knife, dirk, or pistol, or
It should be added, too, that after he had stricken the blows which he inflicted, Avhen called on to desist, though in the act of again striking, and even with the board raised for this purpose, he did desist, and threw it down.
We feel it our duty to observe, however, that though, in our opinion, there is, in this testimony, no evidence of a malignant intention on the part of the prisoner, to take away the life of the unfortunate decedent, yet, the homicide is not without features of considerable brutality. There was- no necessity, whatever, that the prisoner should have resorted to the degree of violence which he employed. The decedent was aged—was intoxicated—was almost incapacitated to have inflicted any very great bodily harm on the prisoner. The beating, therefore, was barbarously cruel. The shocking and profane language, too, used by the prisoner, after he was informed that the victim of his passion was no more, .serves to darken the coloring in the ghastly picture of his transgression.
In consideration of these things, we would be glad to see a penalty more severe than that which is attached to the crime of man-slaughter, visited upon this prisoner. But we are not prepared, for the reasons we have given, to say that this unhappy young man should suffer the same punishment, appointed to him who, in cold blood, and deliberately, destroys the life of