75 Ga. 181 | Ga. | 1886
The defendant was tried for the murder of Asbury Whitehead, and upon being convicted of voluntary manslaughter, moved for a new trial, upon nine different grounds, which, after argument and consideration, was refused.
The first ground is that the verdict was contrary to law and evidence. The second, third and ninth grounds except to instructions given by the court and its rulings upon dying declarations. The fourth alleges error in failing to charge as to involuntary manslaughter. The fifth complains that the court refused to give in charge a mixed request in writing in relation to the circumstances which were sufficient to excite the fears of a reasonable man and to justify the killing, and also in relation to dying declarations; while the sixth alleges that the jury found contrary to the charge upon the subject of circumstances sufficient to excite the fears of a reasonable man, etc. The seventh takes exception to the examination of a witness by the court. The eighth ground was wholly unfounded, and properly abandoned on the hearing before this court.
1. There was.no error in characterizing, under the circumstances in proof, the statements made by the deceased, after he had received the fatal wound, as “ dying declarations.”
2. The next ground calling for notice is that which complains of. the refusal of the court to charge as requested in writing. The latter part of this request has been disposed of in what has been said in regard to dying declarations; the first is fully met and covered by the. charge confained in the succeeding or sixth ground of the motion, which defendant insists was a correct exposition of the law, but which he alleges was disregarded by the jury in their finding, and which we are likewise satisfied lays down tho rule as to the circumstances that should be considered sufficient to excite the fears of a reasonable man and to justify the killing much more accurately and appropriately than did the written request of the defendant. Code, §4321 and citations ; Hopkins’s Pen. L., §926 et seq. Withoutreference to the other defects which this request suggests, and which, render the court’s refusal to give it proper, and which need be more specifically pointed out, it is enough to say that it was fully covered by the general charge, and that lays down the law with as much leniency as the defendant was entitled to.
It is impossible to examine this record without being impressed with the evident reluctance of the witnesses, on
4. But with all this marked indisposition to testify, which could not have escaped the notice of ordinarily attentive jurors, there was enough in their evidence, taken in connection with facts deposed to by less unwilling witnesses, and others revealed by the prisoner in his statement, to justify, if not to require, tiie verdict.
It seems from defendant’s statement that he was afraid of deceased, that before the fatal difficulty, deceased had threatened him; others told him what he had said, and Mr. Eaith had said, “ You watch him, or he will hurt you.” But a short time before the fracas, he had a knife whetted, which was turned over to Mr. Eaith. It was somewhat singular that he was not offered as a witness, and that no reason was given for failing so to do. The defendant was seen, but a few hours before the meeting, with a knife in his hand, which appeared to be concealed by putting the blade up his sleeve. He and his friend, Perry Marlin, met the deceased, treated him to liquor, and had him to sing for them; this was repeated several times; deceased knew before giving him this strong drink that there was no good feeling between them; instead of detaining him and making him drunk, or at least exciting him with liquor, it was his obvious duty, if he would have avoided trouble, to pass on
5. It only remains to add that nothing like a case of involuntary manslaughter appears from the proofs, and had the judge presented such an issue to be passed upon by the jury, he would have been compelled to go out of the evidence to find it; this he had no right to do, and under the facts, he was right in not alluding to it.
Judgment affirmed.