2 Ga. App. 414 | Ga. Ct. App. | 1907
This court is very slow to set aside the verdict of .a jury, approved by the trial judge, on the ground that there is no evidence to support it; but in this case there is not the slightest-scintilla of evidence upon which .the verdict rendered can legally rest. The defendant wás indicted for murder, and found guilty of voluntary manslaughter. If the jury had believed the testimony of the State’s witness, and the dying declarations of the deceased as detailed by his wife, a verdict of guilty of murder would have been authorized; for, according to this version of the case, ihe ■defendant committed nothing less serious than a malicious, unjustifiable, unmitigated homicide. But by their verdict the jury found that the defendant was not guilty of this offense, and, for the purposes of the trial under'review, acquitted him thereof. The testimony by which a conviction of murder would have been authorized having been eliminated, the remainder of the evidence in the case shows a perfect case of justifiable homicide. There was no evidence whatever of a homicide not justifiable, and not malicious, but provoked by an assault or other equivalent circumstances to justify the excitement of passion, that is to sajq of a voluntary manslaughter. According to the State’s testimony, the defendant and the deceased were walking along in the road quarreling; each had a gun, but without any more provocation than mere words, the defendant stepped to one side of the road, deliberately raised his gun and shot the deceased, who was making no assault whatever on him; after the deceased was shot and had fallen to the ground 'he raised his gun and shot the defendant. Of course this ■subsequent shot by the deceased could not justify or mitigate the ■defendant’s offense, already committed. According to the defendant’s statement, corroborated by his witnesses, the deceased and a •companion made a joint quarrel with him, which he sought to decline until the deceased, witli the statement that he'was going to shoot the defendant, jumped back, cocked his gun, aimed it and fired, the load striking the defendant, who to repel the attack, .also fired his gun simultaneously, striking the deceased and mortally wounding him. If this be the truth of the case, the killing was justifiable homicide. There is no theory of mutual combat on
Judgment reversed.