123 Ga. 539 | Ga. | 1905
Stephen Rentfrow was tried for the murder of his daughter-in-law, Mary Rentfrow, and was found guilty with a recommendation that he be sentenced to the penitentiary for life. .He made a- motion for a new trial, which was overruled, and he. excepted.
1. The motion complains that the court erred in admitting evidence to the effect that the character-of the- accused for violence was bad, over the objection, made at the time the evidence was offered, that only the general character of the accused was. in issue, and that evidence as to his' character for any particular-trait was inadmissible. Regardless of the merit of this objection, it appears that before the argument began the court ruled out the evidence objected to, and instructed 'the jury to disregard it; and so, conceding that the admission of the evidence in the first place was, erroneous, that error was completely cured, and the accused has no ground for complaint.
2. The two remaining grounds of the amendment to the-motion for a new trial both complain, in effect, that the court erred in failing to give in charge to the jury the law of voluntary manslaughter; and this is really the controlling question in the case. The case is, on its facts, a very peculiar one. The accused ■is an aged man — nearly fourscore, years old — and the deceased,
.“Manslaughter is the unlawful killing of a human creature, without malice, either express or implied; and without any'mixture-of deliberation whatever.” Penal Code, § 64. “ In all cases of voluntary manslaughter, there must be some actual assault upon the person killing, or an attempt by the person killed to commit a serious personal injury on the person killing, or other equivalent circumstances to justify the excitement of passion, and to exclude-all idea of deliberation or malice, either express or implied. . The killing must be the result of that sudden, violent impulse of passion supposed to be irresistible.” Penal Code, § 65. It will be seen that the one essential element of voluntary manslaughter is passion — hot blood. When an unlawful killing is shown by the State, the presumption is that it was prompted by malice; and to reduce the homicide below the grade of murder it is necessary for the evidence to show the absence of malice. If the-state of mind of the accused in the present case could be inferred from that of the deceased at the time when she seized her gun and announced her determination to make him get out of her garden, a jury might well have found that he was actuated by passion rather than malice. There is in this case, of course, no question of mutual combat. The meeting was sudden and unexpected, and immediately preceded the homicide. And it must be borne in mind that the mental state of the accused — not that of the deceased — is the test to determine whether a homicide be-manslaughter. Was there an “actual assault upon the person killing, or an attempt by the person killed to commit a serious, personal injury on the person killing?” Only by the statement, of the accused can such a theory be upheld; and it is well settled
The foregoing discussion renders it manifestly unnecessary to •discuss the contention that the verdict was contrary to law and the evidence.
Judgment affirmed.