130 Ga. 400 | Ga. | 1908
(After stating the facts.)
1. Complaint was made in the motion for a new trial of the refusal of the court to instruct the jury, as requested in writing by the accused, as follows: “A man may repel force by force, in defense of his person against any one who manifestly intends and endeavors by violence of surprise to commit a known felony on him. In such a case the defendant is not compelled to retreat, but may pursue his adversary until he finds himself out of danger, and if, in the conflict between them, he happens to kill him, such killing is justifiable.” The errors assigned were: “(a) The evidence in the case showed that there was a mutual intention to fight on the part of the defendant and the deceased, and great heat of blood, (b) The evidence for the State-showed that the deceased had his knife open and in his hand before the defendant ever drew his.” The most favorable view of the evidence for the accused is that there was a sudden quarrel, and drawing of deadly weapons by both parties, with a mutual intent to fight, when the difficulty
2. Another contention was, that the court erred in charging as follows: “If you believe, from the testimony, that at the time the defendant approached the deceased, if the evidence showed that he approached him, he had formed the intention of killing the deceased, and that defendant’s purpose in approaching him was to provoke the deceased to attack him for the purpose of killing the deceased, and if you should further believe that under such circumstances the defendant provoked the deceased to resist him, or if he attacked him in a way that made it necessary for the deceased to resist him, then, under such conditions, the killing would be murder.” The only exceptions to this charge, referred to by counsel for the plaintiff in error in their brief, are “that the evidence did not authorize the charge; it was too strongly against the defendant, and suggested a deliberateness of purpose on the part of the defendant that did not appear from the evidence.” These exceptions are, we think, without merit, as the evidence fully war-ranted the charge.
3. There were also exceptions to the following charge: “If you believe that at the time the first blow •fras inflicted by the de
We do not see how the charge was calculated to mislead the jury, by withdrawing from their consideration the effect of the wounds inflicted before the flight of the deceased. Counsel coniend that “if a fatal blow was given before the flight of the deceased began, what happened thereafter, revealing the brutal nature of the defendant, should not be considered to determine the nature of his guilt.” The State evidently relied for .a conviction of murder upon the evidence of the witnesses who testified, that the deceased quit the fight, after he had been wounded, and fled, unarmed; that he was pursued by the accused, with an open knife, for a distance of between twenty and fifty yards; that in endeavoring to escape from his pursuer, the deceased dodged around a post and fell to the ground, on his back, and that the accused jumped on him and almost cut his head from his body, killing him instantly. For thus instantly killing the deceased, the accused was convicted of murder. There was no evidence that the death of the deceased was caused by the wounds, or either of them, that he Teceived before he fled. Even if there had been evidence that he would have died from such wounds, or either of them, the accused, ns we have already .intimated, was guilty of murder, if he subse
4. The verdict was authorized by the evidence, and the court did not err in refusing a new trial.
Judgment affirmed.