10 Ga. App. 464 | Ga. Ct. App. | 1912
Rickerson was indicted for the murder of Moseley and convicted of voluntary manslaughter. His motion for a new trial was overruled, and he sued out a writ of error to this court.
1. It would serve no good purpose to enter into a long discussion of the evidence. Suffice it to say that the jury could have found that both men were drunk and ready to fight; that Moseley indicated a willingness to fight and threatened to kill the accused unless he took another drink; that Rickerson left Moseley, went to a near-by buggy, got a pistol, returned to Moseley, who was sitting in'his buggy, and then both began shooting at about the same time. This theory brings the case squarely within the ruling made in Gann v. State, 30 Ga. 67, and cases of kindred nature. The judge fairly presented this theory of the ease, and there was no prejudicial error in his instructions on the subject.
2. The court charged, in effect, that when the State shows the killing, the burden is shifted to the accused, to mitigate or justify it. This is unquestionably the law, and the charge was warranted by the evidence. The State relied partly upon proof of incriminating admissions by the accused. While some of the witnesses testified that exculpatory statements were coupled with the admissions, one witness testified to a bald confession without any attempt at justification. It makes no difference how a killing be shown; when once proved, a prima facie case of murder is made for the State, unless, of course, it is made to appear at the same time that the killing is justifiable, or a lower grade of homicide has been committed. Whenever such a prima facie case is made, the burden is on the accused to set up his defense. This is what the trial judge charged, and his language was so guarded as not to prejudice the accused.
3. Complaint is made in the motion for a new trial that the venue of the offense was not proved. Kelly and Farrar are two railroad stations about two miles apart in the northern part of Jasper county, Kelly being south of Farrar. There is also a public road between these two villages. The accused lived on this public road, and a witness named Spearman also lived on it, about four hundred yards from the accused. Spearman testified: “My house and the house where Rickerson lived is on the same road, but on different sides of the road. It is level from Rickerson’s house for about fifty or one hundred yards, then you go down grade, a hill, and then up a pretty good hill and down a long hill to my
Judgment affirmed. Bussell, J., dissents.