174 Ga. 878 | Ga. | 1932
Lead Opinion
George Smith was convicted of murdering his wife, Nella. The killing occurred on Wednesday, July 1, 1931. On the previous “Monday morning” Smith was informed by another that his wife had had illicit intercourse with James Hanks. On the day of the killing, a number of negroes, including Nella Smith, had gathered at a church for the purpose of cleaning off
One ground of the motion for a new trial, this being the ground chiefly insisted upon in the oral argument of the case, com
Another ground of the motion complains, and this question was also referred to in the oral argument, that the court erred in instructing the jury, on the subject of justifiable homicide, that “if you should believe that the defendant did shoot and kill the person named in the indictment, . . and that at the time of such killing the circumstances were not such as to excite the fears of a reasonable man that the defendant was in danger from the deceased, and furthermore that the circumstances were not such as to convince a reasonable mind that it was necessary to kill the deceased in order to prevent the seduction [italics ours] of the wife of the defendant by another, or to prevent an act of adultery on the part of another with the wife of the defendant, but that the killing was done deliberately and in revenge for a past act,” etc. It is unnecessary to repeat the entire excerpt quoted in the motion. It is sufficient to say that the exception is to the use of the word “seduction.” It is argued that a married woman can not be seduced, and therefore to use the word “seduction” with reference to
There are other grounds of the motion, which have been carefully considered, but they do not show error and are not of such character as require special discussion.
•Judgment reversed.
Dissenting Opinion
dissenting. This court has said: “This court will go as far as the rules of established law will permit in protecting the virtue and chastity of the wives and daughters of this State from the criminal wiles of the adulterer and seducer, and will uphold husbands and fathers in all they may lawfully do to maintain and protect the sanctity of their homes and firesides.” And again, “The law permits and will justify the homicide of another by the husband to prevent the seduction of the wife, or even to prevent the committing of a single act of adultery, if by his previous conduct he has not forfeited the right.” Wilkerson v. State, 91 Ga. 734, 737; Gossett v. State, 123 Ga. 434. As has frequently been stated and as reiterated: “But in such cases, whether relating to wife or daughter, the idea of prevention or defense against an im
Where, instead of slaying the adulterer or seducer for the purpose of protecting the virtue of one’s family and to protect the sanctity of his home, the wife or daughter is slain, it would seem that the very foundation of the law has been destroyed. In other words, in laying down the law mentioned above, the purpose was not to palliate or to excuse the killing of the wife or daughter, as the case may be, but that does not take away the right to have the offense reduced because of the human element of weakness due to the excitement of irresistible passion. The Penal Code, § 65, provides that in order to reduce murder to 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, or other equivalent circumstances to justify the excitement of passion and to exclude all idea of deliberation or malice, either express or implied." (Our emphasis.)
In Fry v. State, 81 Ga. 646 (4) this court said: “That the wife was unchaste or otherwise a bad woman would certainly not justify the homicide, nor would it, in the absence of 'a sudden
In Smith v. State, 73 Ga. 31, the court held: “If the killing was without malice, that is, was done without a deliberate intent unlawfully to take human life, then it was not murder. If it was
Under the undisputed facts shown by the evidence and repeated in the statement of the accused, the accused on Monday morning was told that his wife had been guilty of illicit intercourse with a named man. He waited until Wednesday, when his wife, along with others, was at a cemetery near a colored church. He left his home and his duties, together with' several other men, and went in an automobile to the cemetery. He had provided and was armed with a pistol, a deadly weapon. On arrival he did not go immediately to his wife, but after a few moments he approached within calling distance and requested her to come to him. She made no answer. He' thereupon approached and called her. She
It is insisted, however, that under the evidence the charge as requested should have been given to the jury, because the question of cooling time was one exclusively for determination by the jury. It is a correct abstract principle of law that the question of cooling