83 Ga. 44 | Ga. | 1889
The defendant was indicted, tried and convicted upon the charge of murder. He made a motion for a new trial upon many grounds, which was overruled, and he excep'ed.
' 1. The 4th, 5th and 6th grounds may be considered together. In these grounds it is complained that the court instructed the jury, in substance, that if after they had examined the evidence, and weighed it fairly and impartially, without favor or affection to either party, they were satisfied the defendant was guilty, they ought to so find. The objection to this instruction was, that the court failed to add, “if the jury were satisfied beyond a reasonable doubt.” Taking the whole charge together we do not think the exceptions taken in these grounds are well-founded. We do not think it is necessary for the court to qualify every principle it gives in charge to the jury by the addition of these words. If the court charges fully and. fairly the doctrine of reasonable doubt, that is sufficient, and it is unnecessary to repeat it at the end of every sentence of his charge when instructing the jury how they should find if they believe the evidence makes out a case of guilt. Darby v. The State, 79 Ga. 63.
2. Complaint is made in the 7th ground that the court charged the jury that, “while the presumption is in favor pf inuoeencé, yet when the evidence shows the fact that one man has killed another, the law presumes that the
3. The 8th, 9th and 10th grounds are as follows:
8th. That the court erred in charging as follows: “If Yann, without any sufficient provocation, made an assault upon White, and White did no more than push him (which he would be justified in doing, under the circumstances), then, if Yann began shooting at White, White had the right to defend himself with a pistol or anything else, provided he did not go further than the circumstances would justify,—that is, further than a reasonable, prudent man might go, in his own defence.” This is alleged to be error because it quotes from the testimony of the State, and expresses an opinion on that testimony, and particularly because the court expressed the opinion that if White did no more than push Yann down, he would have been justified in doing so under the circumstances.
9th. That the court erred in charging as follows : “If the defendant used the first opprobrious language, the-, fact that the deceased used opprobrious language back would not justify his assaulting him by putting his pistol in his face, if he did, nor an assault and battery; nor-would the use of opprobrious words in any case authorize a man to assault another with a deadly weapon.” This is alleged to be error because it quotes from the testimony of the State, and thereby expresses an opinion on the testimony.
10th. That the court erred in charging as follows : “If you believe from the evidence that Yann was the assailant, and White did no more than a reasonable and prudent man would do to defend himself when he pushed him down and fired the shots he fired, and then,
The objection in each of these grounds is, that the charge of the court quotes from the State’s testimony, and is an expression of opinion on that testimony. We do not think that the court, in the charges here complained of, gives any expression of opinion as to what has been proved. His purpose evidently is to charge upon the effect of certain testimony, provided the jury believe this testimony to be the truth of the case. He says, “ If you are satisfied that these are the facts, then White had the right to defend himself with a pistol,” etc. The poi’tion of the charge which is specially objected to in the 8th ground is, in substance,-that if the jury were satisfied that Vann, without any sufficient provocation, made an assault upon White, and if they were satisfied that White did no more than push him, then he would be justified under the circumstances. There was no error in this. Taking the view of counsel for plaintiff’ in error, still we think it is true that if a man assault another without sufficient provocation, the person thus assaulted would be justified in pushing him; and construing it most strongly against the State, that may he what the court meant in this part of the charge. We think, however, that the charge means that if the jury believed that Vann, without sufficient provocation, made an assault upon White, and if they believed that White did no more than push him, and if they believed
Nor, as we have said, do we think there was any expression of opinion in the charge complained of in the 9th ground. It seems to us that the court, in this portion of the charge, studiously avoided saying what had been proved, simply charging as to the effect of certain testimony, provided the jury believed it to be true. By reference to the charge of the court itself, it will be seen that at the time the language objected to was used, the court was charging generally as to the use of opprobrious words; and after using the language complained of, the court said, “You are to see how this matter was brought about, who was in fault,” etc. And again, “ And you are the judges of the evidence and what it shows, and the court intimates nothing to you about what has or- has not been proven.”
The same remarks will apply to the objection made in the 10th ground. The charge there complained of
4. The 11th ground of the motion for a new" trial complains of this charge: “But the doubt must be a reasonable doubt, not a conjured up doubt—such a doubt as you might conjure up to acquit a friend, but one that you could give a reason for.” This is objected to on the ground that it does not correctly give the law on the subject of reasonable doubt. Ve see no objection to this charge. It seems to us that it correctly states the doctrine of reasonable doubt. While the language used is unusual, it is substantially in accordance with the recognized definition of reasonable doubt. In using the ffiords, “not a conjured up doubt—such a doubt as you might conjure up to acquit at friend,” the court evidently meant to say, “not such a doubt as might influence you in the case of a friend in whose favor you were strongly prejudiced”; because in the absence of such a caution, even an imaginary doubt might decide a juror in favor of a friend in whom his confidence was so great as to make it difficult for him to credit him with the commission of such a crime. It is difficult to see what construction could be reasonably placed upon this charge which would take away from the prisoner the benefit of a'reason able doubt as understood by the law.
5. The next ground (the 12th) is too trivial for serious
6. The 13th ground complains that the court refused to charge, as requested by counsel for the defendant, that “while drunkenness is no excuse for crime, yet it may be considered as to whether the prisoner was , excited at the time of the killing by passion or malice.” We do not think there was error in the refusal to give this in charge. It is too vague and indefinite. Passion will only mitigate when there has been “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.’’ Code, §4325. Simply to prove that a man was drunk and killed another in passion, would not reduce the crime from- murder to manslaughter.
7. The alleged error complained of in the 14th ground is also too trivial to mention. The court sai'd “ I believe there was something said about intention, which I might have given you in another connection,” etc. This is alleged to be error as tending to make light of the defence on the question of intention.
8. The 15th ground complains that the court erred in charging as follows: “Where a dangerous and deadly -weapon is used with violence upon the person of another, and this has a direct tendency to destroy life or do some great bodily harm to the person assailed, the intention to take life or do some great bodily harm
9. The 16th ground complains that the court engaged in the following colloquy with one of the eoun
10. The 17th ground complained that the court erred in failing to charge that it was the duty of tbe State to make out its case, and that the allegations in the bill of indictment must be proved beyond a reasonable doubt. It does not appear that the court was requested to give this in charge, and the charge given, as a whole, sufficiently covers the points here presented.
This charge seems clear enough, and we do not see how the jury could fail to understand from it their right to recommend to mercy. Nor do we think the language quoted imposed a restriction upon the right of the jury to so recommend, especially when taken in connection with the rest of the charge qn the subject. The court told the jury: “ It is a matter solely with the jury; it is a matter.which you have in your discretion the right to do,” etc. Again, just following the lan
. 12. The 19th ground complains that the court erred in frequently inten’upting coxxnsel in their argument to the-jury, the ixxterruptions being unnecessax’y and calculated to prejudice the jury against the defendant and his counsel. The interruptions are then set out, axxd consist of corrections by the court of counsel in their statements of the evidence axxd of the law. "We see no error in the actioxx of the court as complained of in this gx’ound. In the case of Grady v. The State, 11 Ga. 253, this court say that it is not only the privilege of the court, but its solemn duty, to interrupt couxisel when misstating the evidexxce to the juxy. In the case of Green v. The State, 43 Ga. 368, the same ruling was made, and the decision in Grady v. The State, supra, quoted and approved. "While the correctioxis in this case appear to have been immaterial, we caxxnot say that the court erred in interruptixxg counsel to make them, especially when the court instructed the jury that when the coux’t and counsel differed, they must decide for themselves what was the truth of the matter. Had
Nor do we think it was error, when court and counsel differed as to what a witness swore to, for the .court to require the stenographer to read from his notes the exact words of the witness. My observation in the superior court has been, that when counsel differ among themselves or with the court as to what is the testimony, it is an every-day occurrence to call upon the stenographer to read his notes in order to settle the difference.
13. The 20th ground is also too trivial to notice. -It complains of what the court said in a private conversation with one of the counsel for the defendant. The same may be said of the 21st ground, which complains that the court said to Mr. Shropshire, who had suspended the' argument while the jury were drinking water, “Go on, Mr. Shropshire,” and then remarked, “I am getting tired.”
14. The 22d, 23d and 24th grounds complain of the ruling out of certain threats made by White, the deceased, against Vann. These threats were ruled out because they had not been communicated to Vann. There was no error in the rulings complained of in these grounds. The threats had never-been communicated to Vann. Lingo v. The State, 29 Ga. 470; Hoye v. The State, 39 Ga. 718; Peterson v. The State, 50 Ga. 142.
15. The 25th ground claimed that a new trial should be granted because of certain so-called newly discovered evidence which relates to the disqualification of John Pollock, one of the jurors who tried the case. This ground is supported by the affidavits of J. W. Wood and A. W. Wood. They swear, in effect, that on
On a motion for a new trial in a criminal case because of the previously expressed opinion of one of the jurors who rendered the verdict, the circuit ju’dge, as to this question, occupies the place of a trior, and this court will not undertake to control his judgment as to
16. Having discussed all the special grounds of the motion which we deem worthy of notice, it only remains now for us to discuss the general ground that the verdict is contrary to the evidence. We have read the evidence carefully several times, from beginning to end, and we are convinced that instead of the verdict being contrary to the evidence, the evidence really demanded the verdict. This unfortunate man seems to have been the aggressor throughout the whole difficulty. Prom early morning until late in the afternoon, he seems to have pursued the deceased, heaping upon him curses and abuse whenever they met. The deceased avoided him, and failed to resent any of the insults heaped upon him. The accused filled himself with whiskey, which excited his mind and inflamed his passions so much that he was a terror to the peaceable citizens of the town. At their final meeting late in the afternoon, he continued his abuse and the use of vulgar and obscene language towards White, heaping upon him the vilest epithets, and finally drawing a pistol, with which he slapped White upon the face. White then pushed him down. As he arose, he pointed his pistol in the direction of White and fired. White then drew his pistol and fired at Vann twice in rapid succession; whereupon he was told by some of the bystanders to desist; and although he had his pistol in position to shoot the third time, he immediately lowered it and walked off. As White was walking away from Vann, and was six or seven steps off—some of the wit
We sympathize with him and his unfortunate family upon the dreadful fate which he has brought upon himself ; hut courts and juries cannot yield to their sympathies. The law must be executed. The more strictly it is enforced in-eases like this, the less cause will there he for its enforcement. “ The way of the transgressor is hard,” and he must learn that “ the velvet glove of liberty encases the merciless hand of the law.”
Judgment affirmed.