36 Ga. App. 639 | Ga. Ct. App. | 1927
(After stating the foregoing facts.) Only the second and third headnotes need elaboration.
Special ground 2 of the motion for a new trial is as follows: “Because the court failed to charge the jury on the law of involuntary manslaughter, and the defendant’s statement, taken as a whole, demanded a charge on involuntary manslaughter.” An examination of the evidence in this case clearly shows that there is nothing in it upon which the jury could base a verdict of involuntary manslaughter. Where one voluntarily stabs another and death results, the homicide can not be involuntary. The evidence shows beyond question that the accused deliberately stabbed the deceased over the heart. “Where a blow mortal in its nature is wilfully inflicted with an instrument likely to cause death, the homicide produced by it is not involuntary manslaughter, but unless justifiable, is either murder or voluntary manslaughter.” Boatwright v. State, 89 Ga. 140 (4) (15 S. E. 21). “While there can be neither murder nor voluntary manslaughter without an intent to kjll, yet where the weapon used was a pocket-knife, and- the defendant stabbed the deceased in the neck with it, an intent to kill may be presumed.” Johnson v. State, 4 Ga. App. 59 (3) (60 S. E. 813). Moreover, there was no request to charge the jury on involuntary manslaughter. In Jackson v. State, 91 Ga. 271 (18 S. E. 298, 44 Am. St. R. 22), the court held: “Where there is nothing in the evidence to indicate that the killing was not voluntary, and where no charge is requested on that subject, involuntary manslaughter is not an issue in the case, and no allusion should be made to it in charging the jury, even though the prisoner’s statement by indirection suggest such a theory.” See also Thornton v. State, 107 Ga. 683 (6) (33 S. E. 673); Lott v. State, 18 Ga. App. 747 (2, 3) (90 S. E. 727); Kinsey v. State, 24 Ga. App. 342, 343 (100 S. E. 770). So it is clear that the court did not err in failing to charge the law of involuntary manslaughter.
The next ground of the motion for a new trial alleges error “in that the defendant and her attorneys did not have time and were not given an opportunity to poll the jury nor to demand a poll of the jury between the time that the jury published its ver
In Freeman v. Brown, 115 Ga. 23 (41 S. E. 385), Mr. Justice Eish said: “What the judge orally declares is no judgment until it has been put in writing and entered as such.” See Foy v. McCrary, 157 Ga. 461 (121 S. E. 804).
Judgment affirmed.