73 Ga. 79 | Ga. | 1884
[Eason Smith was indicted for the murder of Franklin Mills. On the first trial, a verdict of “ guilty of manslaughter ” was found, and a new trial was granted. A change of venue was had from Clinch to Ware county. On the last trial, the evidence for the state was, in brief, as follows :
A feud existed between Benajah Mills, the brother of the deceased, and defendant. On May 1,1880, Benajah» the deceased, and several connections went into Homers-ville, in Ware county. Benajah saw defendant coming towards him, and motioning to his brother, the deceased, they walked oif. Seeing defendant coming after them» they stepped into a lot, stopped a few minutes and then walked out to the gate. Defendant came up, caught Benajah by the coat-sleeve, and said, “Come this way; there is a difficulty pending between us that’s got to be settled this day.” Benajah said he thought they could settle it, if defendant would allow him “ to reason this case;” that he did not wish a trouble, because defendant had “ accused him wrongfully.” Defendant became very angry, and in. vited Benajah to fight; the latter declined, and said he would rather settle it outside of a fight. Defendant dared him to a fight, and “ slapped ” his fist in Benajah’s face, and marking a ring on the ground with his foot, invited him “to come into” him, saying, “I will fight you a fair fight.” Several gathered around (among them the friends
The statement of the defendant was similar to the testimony in his favor, except as to the shot that caused the death of the deceased. As to this, as it appears in the record, it is unintelligible. It is in these words:
“I got my pistol out of my pocket and told them I didn’t want to fight them, except a fair fight, one at a time, and held it up in the air and fired it; and Berrien Mills threw a weight at me and knocked me down; and John F. Smith jumped on to me and started to cut my throat;
The jury found the defendant guilty of voluntary manslaughter, and he was sentenced to two years in the penitentiary. He moved for a new trial, on the following-grounds :
(1.) Because the verdict was contrary to law and evidence and the charge of the court.
(2.) Because the court did not charge on the subject of involuntary manslaughter.
(3.) Because the court charged as follows: “ If you find that he was surrounded by this urgent and pressing danger at the time of the killing, you will then inquire further, was the deceased the assailant, or did the defendant in good faith endeavor to decline any further struggle before giving the mortal blow ? In order to make it a case of' justifiable homicide, it must appear, first, that there was this urgent and pressing danger to the defendant at the time of this killing; and it must.further appear that the person killed was assailant, or that the defendant in good faith endeavored to decline any further struggle before giving the mortal blow. Although a man’s life be in danger, yet if he is responsible for that danger, if he provoked that danger, then the existence of the danger cannot be urged as a defence to himself. In order to justify his act upon the plea that this danger exists, it must appear that he is not responsible for the danger, but that the other party is.” '
The motion was overruled, and defendant excepted.]