136 Ga. 231 | Ga. | 1911
Leonard Worley was indicted for the murder of E. S. (Emory) Worley. The State introduced a single witness, who testified, in brief as follows: The accused and the person killed were brothers, and the witness was ’ their brother-in-law. The accused came to the house of the 'witness about one o’clock at night, and said that Emory had beaten him with knueks, and that he was going to shoot his brother. The witness saw where the neck of the accused was scratched a little. The witness told him not shoot his brother, but to return home. The accused went to the house of a named person, and the witness called him back. He brought his gun with him, and set it beside the door. “He got down on his
The evidence in this case is somewhat meager. The State introduced a single witness, who testified to what occurred at the time of the killing. It was inferable from his testimony that there had been a previous difficulty, or some previous transaction leading up to the homicide. Neither the State nor the accused introduced any evidence on that subject, though it might have cast light on the question of malice or the absence of it. The accused made no statement. The evidence of the State’s witness did not show such a clear and unquestionable ease of murder, that certain inaccuracies or errors in the charge could be declared harmless. The charge on the subjects of justifiable homicide, voluntary manslaughter, and reasonable doubt was not free from criticism. The statement quoted in the seventh headnote was not correct. By the Penal Code (1910), § 70, it is declared that “Justifiable homicide is the killing of a human being . . in self-defense, or in defense of habitation, property, or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony on either,” etc. By section 71 it is declared that “A bare fear of any of those offenses, to prevent which the homicide is alleged to have been committed, shall not be sufficient to justify the killing. It must ap
We have considered whether the judge, in including the reduction of a homicide from murder to manslaughter in his charge on the subject of reasonable fears, did not rather err in favor of the accused than against him. But when the judge charged that the circumstances must be sufficient to excite the fears of a reasonable man that a serious bodily injury, not amounting to a felony, was about to be inflicted upon the accused, in order to reduce the killing from murder to manslaughter, thus excluding the consideration of other matters which might be sufficient, under the statute, to arouse uncontrollable passion and reduce the killing to manslaughter, it can not be held that this was harmless error. In another part of his charge he again applied the doctrine of reasonable fears to the subject of voluntary manslaughter.
In arguing a criminal case, counsel may read law to the jury, subject to the correction of the court in his charge, in order to apply the facts to the rules of law which they contend are applicable to
The presiding judge charged as set out in the ninth headnote. This charge was evidently taken from the opinion of Chief Justice Simmons in Cumming v. State, 99 Ga. 664 (27 S. E. 177). It seems to follow the statement of that opinion quite' closely, except that the expression is there used, that, “In order to justify a homicide, there must be something more than mere verbal threats,” etc., while here the judge employed the expression that “There must be something more than a mere threat or menace,” etc. In Webster’s Dictionary the word “menace” is defined as follows: “The show of an intention to inflict evil; a threat; indication of probable evil or catastrophe to come; that which menaces; an impending evil.” The word, as thus defined, has a meaning synonymous with
Except as herein stated, none of the rulings contained in the headnotes require further elaboration. If during the former trial any small inaccuracies not specially mentioned were committed, they were not such as to be likely to occur again.
Judgment reversed.