137 Ga. 218 | Ga. | 1911
Bichard Washington was indicted in Jasper superior court for the offense of murder, and at the August term, 1911,.of said court he was found guilty by the jury trying him, with the recommendation that his punishment be life imprisonment in the penitentiary. A motion for a new trial was made on the general grounds, which was afterwards amended. The motion, as amended, was overruled by the court, and the defendant assigns this ruling as error. The case made by the State is substantially as follows: On the night of the homicide defendant and deceased were at the house of William Smith; “there was no frolick there that night.” Neither deceased nor defendant had had any previous difficulty, so far as the evidence discloses, just before the shooting, but were sitting down, laughing and talking. Just before the pistol fired the deceased asked tlie defendant for a cigarette, and the defendant asked the deceased if he wanted it “rolled hard or soft;” and shot him. The witness who testified to these facts was standing behind the defendant, in another room, and did not see defendant when he fired, and did not know where he got the pistol. But one shot was fired. The defendant did not say anything after he shot the deceased, but “stood out there in the floor with his head hung down, and then went out of the door with his head hung down.” The deceased just said, “Oh, Lordy!” This witness and the deceased were sweethearts, and were to be married at Christmas; she was also a niece of the defendant, and had never heard of any trouble between the defendant and the deceased, but defendant always told her “he thought a lot of Sidney Boberts,” the deceased. Two other
We do not think there is any merit in the 10th ground of the motion, and that the construction placed upon the language in the charge iá not fairly inferable from the language itself, when fairly understood. The court charged the jury, that “the defendant, on the other hand, contends that he is not guilty of any offense. While he admits that he did the shooting as alleged by the State on or about the time alleged by the State, he contends that the shooting was without malice aforethought, either express or implied, and contends that it was not his intention to kill, but was entirely an accident or misfortune, and that he would not be guilty of any offense under the law and evidence in this case.” We do not think that this charge is susceptible of the construction contended for by the plaintiff in error, to the effect that the charge misstated the contention of the defendant, because “defendant did not contend or admit that he did the shooting as alleged in the indictment, for if such admission had been made he would be guilty of murder.” Taken in connection with the context, it is clear that the court did not so intend, nor could the jury have reasonably so understood.
Judgment reversed.