150 Ga. 799 | Ga. | 1920
1. The defenses applicable in a case of homicide, provided in the Penal Code, § 71 and § 73, are distinct. Surles v. State, 148 Ga. 537 (7), 538 (97 S. E. 538). Section 71 is applicable where the slayer is without fault, and in that case a seeming or apparent necessity, if acted upon in good faith, is equivalent to a real necessity. Section 73 is applicable to a case of mutual combat, where both parties are at fault. “ To be justified for a homicide following a mutual comr bat, it must appear that the danger to the slayer was so urgent and
2. The court charged the jury: “ Express malice is the deliberate intention unlawfully to take away the life of a fellow creature; manifested by circumstances capable of proof. Wherever it is shown in a case that one makes up his mind unlawfully to kill another, then express malice is shown, because that is the definition of express malice; it means the deliberate intention unlawfully to take away the life of a fellow creature. Malice does not always mean hatred or ill will; but whenever one unlawfully makes up his mind to kill another and executes that intention, then the law says that it is express malice.” The omission of the word “ external ” before the words “ circumstances capable of proof” was not prejudicial. Compare Worley v. State, 136 Ga. 231 (71 S. E. 153). On a fair construction this excerpt from the charge, though otherwise subject to some criticism, is not cause for a new trial.
3. The court charged the jury: “ But malice will be implied in every case of an unlawful killing where no considerable provocation occurs and all the circumstances of the killing show an abandoned and malignant heart.” This was a substantial compliance with the Penal Code, § 62, and the slight variation does not constitute error.
4. The newly discovered evidence was impeaching in character, and would not probably cause a different result on another trial. The court did not err in refusing a new trial on the grounds of alleged newly discovered evidence..
5. The ground of the motion for new trial complaining that the court erred in failing to charge the jury “upon the law of voluntary manslaughter as applicable to cases of mutual combat” is shown, by the charge of the court actually given, to be -without merit.
7. Error is assigned upon the refusal of the court to give in charge certain requested instructions, and upon other excerpts from the charge, on the ground that there was no evidence to authorize such instructions; and upon the ground of verbal inaccuracies. While in some instances the charges complained of contain slight verbal inaccuracies, in the light of the evidence and the entire charge none of these assignments of error require the grant of a new trial, and they are not of such character as to require special mention. The verdict was supported by evidence, and the court did not err in overruling the motion for a new trial. Judgment affirmed.