119 Ga. 431 | Ga. | 1904
With one exception, we find no error in any of the rulings of the trial court, of which complaint is made. The judgment overruling the motion for a new trial is reversed solely because of a charge of the court which is in the abstract perfectly sound, but which, in our opinion, was not adjusted to the evidence, and the tendency of which, under all the circumstances, was necessarily prejudicial to the accused. The evidence in the record as to the immediate circumstances of the tragedy under investigation is very confused, and leaves much to conjecture. It appears that on the night of the homicide a party of negroes, including the accused, the deceased, and Mary Standifer, a woman who was described by some of the witnesses as the sister of the deceased, but by herself and others as his cousin, had been to church. Presumably their way home led along a railroad track in the vicinity. The accused and the deceased left the church in different groups of negroes, and proceeded up the railroad track, but whether the deceased preceded the accused or vice versa, and what distance separated them in their walk, are matters which it is almost if not quite impossible to determine from the record. The accused became involved in a quarrel with Mary Standifer, and fired two shots at her without effect. Naturally, Mary ran. Shortly thereafter (how long the record does not disclose) the accused shot and killed the deceased. The State introduced only one eye-witness to the homicide, who testified that at the, time he was shot the deceased was running, but whether he was running towards or from the accused the witness did not state. There was not a line of evidence to show any connection, except in point of time, between the killing of the deceased and the firing of the shots at Mary Standifer, or to indicate that the deceased was killed while attempting to protect his sister, or cousin (whichever she was), from bodily harm. We therefore conclude that it was error for the court to give to the jury the following charge: “ I charge you, under the law as applicable to the evidence in the ease, that a brother has the right to protect his sister, and may justify any defense made by him for the purpose of protecting her life. In order to justify himself for a homicide in defense of his sister, it must not be for the purpose of avenging any wrong that had been perpetrated upon his sister. Apply this principle of law to the case. If you conclude from the evidence
Judgment reversed.