40 S.E.2d 782 | Ga. Ct. App. | 1946
1. The evidence for the State makes out a case of assault with intent to murder against the defendant.
2. No substantial right of the defendant to a thorough and sifting cross-examination was denied, under the record of this case. "The scope of the cross-examination of a witness is not unlimited, but rests largely within the discretion of the judge."
3. Where in a trial for assault with intent to murder with a knife, the evidence tends to show manslaughter, and the court charges the Code, § 26-1007, which defines voluntary manslaughter, and charges also the *635 lesser offense of stabbing, the case will not be reversed because the court did not charge specifically on the principle of voluntary manslaughter as applied to mutual combat, which is involved under the evidence, in the absence of a written request so to do.
1. As to the general grounds, the evidence for the State is in many particulars in sharp conflict with the statement of the defendant and the evidence in his behalf. There was State's evidence authorizing the jury to find that he made an attack upon R. M. Wallace with a knife, a deadly weapon in the manner in which it was used, cutting Wallace in the back of the head, rendering him unconscious, and necessitating his remaining in the hospital for approximately three weeks. The State's evidence shows that at just a short time before the defendant cut Wallace the defendant made the statement, "I will kill you. You betrayed my boys." The evidence for the State further showed that the wound was inflicted without mitigation or excuse.
The evidence for the defendant on the other hand showed justification and that Wallace was the aggressor. This made purely a question of fact for the jury. They resolved it against the defendant, and this court is without authority to interfere. In arguing the general grounds for the defendant, his able counsel contend that, since some of the State's witnesses testified that Wallace struck the first blow in the difficulty, and since the defendant's witnesses testified that both Wallace and the defendant had deadly weapons, knives, the proper construction for this court to put on the testimony is that they were engaged in mutual combat, as the law defines it, and therefore the defendant could not have been convicted of assault with intent to murder; thus inferring that, since death did not ensue, the defendant could have been convicted only of the lesser offense of stabbing. There was ample testimony for the State *636 to warrant the jury in finding that the defendant with malice and without mitigating circumstances made the assault on Wallace with intent to kill him, as alleged in the indictment. It must be remembered that the jury are the sole judges of the credibility of the witnesses, and clothed with this authority, they were authorized to believe those witnesses whom they thought most entitled to be believed. We can not agree with counsel for the plaintiff in this view concerning the general grounds. They are without merit.
2. Special ground 1 assigns reversible error because the court materially and erroneously and to the prejudice of the defendant restricted the cross-examination of Wallace. We have read the testimony objected to and the restrictions of the court in the light of the whole record of testimony, and we can not agree that a new trial should be granted for the reasons assigned in this ground. When we view the whole evidence of the witnesses for the State and those for the defendant, it is quite clear that the jury were well informed as to what caused the difficulty and what part both Wallace and the defendant played in the completed picture, as we view it in the background and light of the entire evidence. In coming to this conclusion, we wish to state that we have read with interest and benefit the excellent brief of counsel for the defendant, and have examined the numerous authorities cited to sustain their contentions, as follows:Central of Georgia R. Co. v. Bagley,
3. Special ground 2 assigns error because the judge failed to charge the principle of voluntary manslaughter as applied to mutual combat. It is conceded that he charged correctly the law of murder, the general law of voluntary manslaughter under the Code, § 26-1007, and the law of stabbing.
It might be well here to set forth the charge relating to the question before us. That part reads: "If you have a reasonable doubt *637 as to the defendant's guilt of the offense of assault with intent to murder, it would be your duty to acquit him, in so far as that offense is concerned. In that event, you would look to the evidence, giving the defendant's statement such weight and credit as you think it is entitled to receive, and determine whether or not the defendant is guilty of a lesser offense, that is the offense of stabbing. Manslaughter is the unlawful killing of a human creature without malice, either expressed or implied, without any mixture of deliberation whatsoever, which may be voluntary upon a sudden heat of passion, or involuntary in the commission of an unlawful act, or a lawful act without due caution and circumspection. In all cases of voluntary manslaughter there must be some actual assault upon the person killing, or an attempt by the person killed to commit a serious personal injury upon 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. Our law provides that any person who shall stab another, except in his own defense, or other circumstances of justification, with a sword, dirk or knife, or other instrument of like kind, shall be punished as for a misdemeanor; provided that, if such stabbing shall produce death, the offender will be guilty of murder or manslaughter, according to the facts and circumstances of the case; or if such stabbing shall not produce death, but the facts and circumstances show it was the intention of the person stabbing to commit murder, the offender would be guilty of assault with intent to murder. If you believe, gentlemen, that this defendant did assault and stab the person named in the indictment, R. M. Wallace, in the manner therein charged, but that at the time of the assault the person assaulted was making some actual assault upon the defendant which was less than a felony, or was attempting to commit a serious personal injury upon the person of the defendant which was less than a felony, or there were other equivalent circumstances to justify the excitement of passion and exclude all idea of malice, either expressed or implied, and that the defendant assaulted R. M. Wallace, the person named in the indictment, under such circumstances that if death had ensued it would have been voluntary manslaughter, then you would be authorized to find this defendant guilty of stabbing. In other words, if you believe the defendant assaulted R. M. Wallace, the person named in the indictment, in the manner as *638 charged, by the use of a weapon, which in the manner it was used at the time was likely to produce death; but at the time of the assault the person assaulted was himself committing or attempting to commit a serious personal injury upon the defendant less than a felony, or that the circumstances were such as would be reasonably calculated to produce the same state of mind as would such as assault or attempt to commit a serious personal injury upon the defendant, which was less than a felony, and to justify the excitement of passion and exclude all idea of deliberation or malice, either express or implied, and the defendant assaulted R. M. Wallace, the person named in the indictment under such circumstances then, if death had ensued, it would be voluntary manslaughter and you would be authorized to find the defendant guilty of stabbing. Or, if death had ensued, it would have been unlawful, in your opinion, but without malice and without any mixture of deliberation whatsoever, but was upon a sudden heat of passion, and without intent to kill, it would have been voluntary manslaughter, and you would be authorized to find the defendant guilty of stabbing. If you believe, gentlemen, that the defendant did assault R. M. Wallace, the person named in the indictment, but the same was done in self-defense, or other circumstances of justification, or that at the time of the assault the person assaulted, that is, R. M. Wallace, manifestly intended or endeavored by violence or surprise to commit a felony on the person of the defendant, or that at the time of the assault the circumstances were such as to excite the fears of a reasonable man that R. M. Wallace, the person assaulted, was intending or endeavoring by violence or surprise to commit a felony or a serious personal injury on the person of the defendant, or that the circumstances were such as to excite the fears of a reasonable man, that a like or similar assault was intended or about to be committed upon the person of the defendant, and the defendant acted under the influence of those fears at the time of the assault, and not in a spirit of revenge, then it would be your duty to acquit the defendant."
We may agree with counsel for the defendant that the evidence as a whole was sufficient to authorize a charge on voluntary manslaughter as applied to mutual combat; and we may further agree that, under the evidence, had Wallace, the victim of the assault, died from the wound, and had the accused been on trial for murder, *639
and had the court failed even without a request to charge voluntary manslaughter as applied to the law of mutual combat, such failure would have been reversible error. Cribb v.State,
The above is the full headnote decision. We have examined the original record in that case, and it appears that the evidence showed that the assignments were based upon a failure to charge voluntary manslaughter under the Code, § 26-1007 and specifically as applied to the principle of mutual combat. Indeed in that case, the court did not charge the law of voluntary manslaughter under either of its phases, nor the law of illegally shooting at another, the lesser offense. In fact, the court did not charge the lesser offense, when the record reveals that the evidence involved voluntary manslaughter under both theories. We think it safe to say that, under the facts of that case, if the court had charged the general law of voluntary manslaughter and also the lesser offense of shooting at another, there would have been no reversal — conceding the evidence to have been similar to the evidence in the instant case. The charge in that case is not at all similar to the charge in the instant case. Here the court in a trial of assault with intent to murder charged fully, as will be revealed, the law as to the offense of assault with intent to murder, voluntary manslaughter under the Code, § 26-1007, as well as the law of stabbing. In support of the Swindle case, supra, the court cited: Kimball v. State,
The court did not err in overruling the motion for a new trial for any of the reasons assigned.
Judgment affirmed. Broyles, C. J., and MacIntyre, J.,concur.