169 Ga. 384 | Ga. | 1929
Renty Screven was convicted of the offense of murder, and was sentenced to be electrocuted. He filed a motion for a new trial, based upon the general grounds and six grounds which were added by amendment. The motion was overruled, and error is assigned upon that judgment. The evidence in behalf of the State was to the effect"that the defendant, after telling a witness he “liad four people to kill this time to-night,” went to the house
The motion for a new trial, originally based upon the general grounds, was amended by assigning as error: (1) That the court charged the jury that “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; and the serious personal injury, under our law, is the commission of a felony, and a felony is a crime punishable either by death or imprisonment in the penitentiary.” The movant alleges that this law is applicable, not to voluntary manslaughter, but to self-defense; that the serious personal injury contemplated in the law of voluntary manslaughter “is a serious personal injury less than a felony;” and that this instruction took away from an otherwise correct statement of the law the idea of voluntary manslaughter altogether, deprived the defendant of a correct charge on that subject, placed upon him a greater burden' than is required by law, and was incorrect, misleading, confusing, and deprived him of that defense. (2) That the court erred in. charging, immediately following the charge just quoted, section 65 of the Penal Code, that provocation by words, threats, menaces, or contemptuous gestures shall in no case be sufficient to free the person killing from
There is no merit in the general grounds of the motion. The facts as derived from all the witnesses, as well as from the statement of the defendant himself, show a deliberate killing without any sufficient provocation to authorize even a mitigation of the penalty imposed by law for murder. It is true that in his statement the defendant told the jury that he did not come to the house where his wife and daughter were staying with an intention to shoot any one. He carried his pistol merely because he was in fear of danger from threats made against his life by his wife and one Reuben Hall. lie stated that he did not shoot when he accosted his daughter with the inquiry, “Is that you, Rosa?” except for the fact that he saw by the light in the window a man approaching, when he shot three times. He does not state that he regretted that his daughter was shot at the time or at the time of the trial. He only suggests the inference that he was shooting at the man and not at his daughter. He does not state as a fact that such was the case. It does not appear from his statement that the man was armed with any weapon or was attempting to procure a weapon of any kind.
As must be conceded, and as is conceded in the clear and concise opinion of the learned trial judge in rendering judgment overruling the motion for a new trial, the assignment of error in the first special ground of the motion is well taken. The trial court’s judgment referred to correctly ruled that the instruction as given was error. It is useless to quote from authorities; but in Buchanan v. State, 24 Ga. 282, Smarrs v. State, 131 Ga. 21 (61 S. E. 914), and other cases it has been settled by this court that a killing in resistance to or prevention of a felony is justifiable, but that no greater punishment than that provided for voluntary manslaughter can be inflicted if one without malice kills another in preventing an assault or injury which is a mere misdemeanor. However, after a very careful review of the record in this case, we concur in the view of the trial judge that this error in the charge wall not require the grant of a new trial in this case, inasmuch as the defendant
The third special ground is without merit. It is contended that the charge would have been applicable under the statement o£ the defendant, to wit, “Rosa and Francis’ daughter were coming out of the door, and I was as close to them as to the back of the wall, and I said, ‘Is that you, Rosa?’ She screamed and dashed back into the house. I saw a man come out of the house. I saw him by the light coming from the room, and I shot.” Of what was the defendant as a man reasonably cool and courageous afraid? Was he in fear that his life would be taken because he saw an unidentified man by the light coming from the room come out of the house? There is not even an inference from this that he was afraid of anything, muchness that he feared his life was in danger or that a felony was about to be committed upon him. However, it is not necessary to elaborate tlie unreasonableness of the facts stated being sufficient reason to arouse the reasonable fears of
Upon a consideration of the entire charge we can not concur in the contention presented in the fourth ground of the motion. We are well aware that it has frequently been held in this State that stressing the contentions of one party at the expense of his adversary may amount to such an intimation of opinion, in violation of the section 4863 of the Code, as to demand the grant of a new trial; but it is clear that the charge did' no more than state the contentions of each party as developed by the evidence and the defendant’s statement, and dispassionately applied the law to each of these contentions. The charge as a whole was not subject to the criticism that the contentions of the State were so stressed as to disparage the contentions of the accused. Penal Code, § 1058.
Touching the fifth ground of the motion, it was stated in the order overruling the motion that on the day when the accused was convicted the judge stated in open court, in the presence of the prisoner and his counsel, that he would pronounce sentence the next morning. The next morning, after concluding, as was his custom, certain motions, and the prisoner being in court, the judge asked if he had anything to say why he should not be sentenced; and there being no reply, he pronounced sentence. The judge states that he 'did not observe whether counsel were present or absent. They had not been excused. We agree with the trial judge that it was the duty of the counsel to be present in court during the session of the court, and that it was solely their concern if they were absent either on account of pleasure or business. However, so far as the rights and interests of the accused in this case are concerned, these were not affected by the absence of counsel. Their presence to hear the sentence pronounced was unnecessary and could not and would not have availed anything.
Judgment affirmed.