Thomas v. State

121 Ga. 331 | Ga. | 1904

Lamar, J.

The careful and thorough review of the authorities, and the convincing opinion of Justice Cobb, in Watson v. State, 116 Ga. 607, make it unnecessary to re-examine the question as-to the possible verdicts which may be rendered in a trial on an indictment for murder. It was there shown that under such a charge the defendant might be found guilty of murder, voluntary manslaughter, involuntary manslaughter in the commission of an unlawful act, involuntary manslaughter in the commission of a lawful act without due care, assault with intent to murder, shooting at another, stabbing, or assault. In other words, whatever may be the rule elsewhere, under the Penal Code of this State each of these minor offenses may, by inclusion, be as well charged as though the indictment contained separate counts for each of these distinct offenses. Treating the indictment, therefore, as in effect containing several' counts, the rule is that a general verdict ■of guilty will be referred to that count charging the greatest offense. “ Verdicts are to have a reasonable intendment, and are to receive a reasonable construction, and are not to be avoided unless from necessity.” Penal Code, § 1033. As far as possible they must be construed according to uniform rules. At the beginning it ' \vould no doubt have been quite as logical to say that a verdict of guilty in such cases should be referred to the lowest, instead of to the highest offense charged. But whether because there was a conclusive presumption that the jury would have indicated that fact if they intended to find the defendant guilty of the lesser offense, or because after the verdict of guilty the presumption of innocence had been removed and in vindication of the law the ■defendant would be considered as guilty of the highest offense named, the principle was established that verdicts of guilty were to be referred to that count charging the greatest offense. By analogy, under an indictment for murder, including therein a •charge of manslaughter, a verdict for manslaughter is to be treated as a finding that the defendant is guilty of voluntary manslaughter, that being the highest grade included within that term. Welch v. State, 50 Ga. 128. By exactly the same principle, if the defendant is found guilty of involuntary manslaughter, the verdict must be treated as a finding that he has committed the highest grade of that offense, or involuntary manslaughter in the commission of an unlawful act. Such was the express ruling of two Judges in Wright v. State, 78 Ga. 192. That decision was based upon the early and carefully-considered case of Bullock v. State, 10 Ga. 60, the principle of which has repeatedly been followed, even where one eouqt charges a felony and the other a rnisde-. meanor. Dean v. State, 43 Ga. 218; Yarborough v. State, 86 Ga. 396; Long v. State, 12 Ga. 317; Adams v. State, 52 Ga. 565. The decision complained of was in accordance with these cases; and there would be no room for questioning the ruling, but for a dictum in Welch v. State, supra, and the opinion in Thomas v. State, 38 Ga. 117. This want of harmony was rebognized in Isom v. State, 90 Ga. 380. But the decision in Thomas’s case was opposed to the principle of the prior ruling in Bulloch’s case, and the later decision in Smith v. State, 109 Ga. 479, nor has it at any time been followed by a full bench. English v. State, 105 Ga. 516. In view of these conflicts the solicitor-general asked and obtained permission to review the Thomas case, if the court should be of opinion that' it was of controlling authority. As has been shown, it was in conflict with the principle laid down in the earlier and authoritative ruling in Bullock’s case. But that there may be no room for future discussion, the court is unanimously of the opinion that the Thomas case should be overruled, and that the principle as expressly announced in Wright v. State should be followed. There was no error in refusing to arrest the judgment.

Judgment affirmed.

All the Justices concur.