Toomer v. State ( 1908 )

Beck, J.

(After stating the facts.) Upon a careful consideration of each of the several grounds of the motion for a new trial excepting to the portions of the charge of the court, no error is made to appear therein. The portions of the charge complained of clearly, correctly, and appositely stated to the jury the law applicable to the case under its peculiar facts.

The last ground of the motion complains that the court erred in not charging the jury the law of involuntary manslaughter in the commission of a lawful act; but we agree with the court below in its holding that there was no evidence in the case to authorize a charge upon this subject, and indeed counsel for plaintiff in error do not undertake to point out any lawful act that the accused was in the performance of at the time of the discharge of the pistol the shot from which inflicted the fatal wound. Fairly construed, the defendant’s statement means that he “threw the pistol down,” that is, brought it down in a position for firing in the direction of his wife, and that he did then voluntarily pull the trigger and discharge the weapon, thinking it was not loaded. In doing this, whether the pistol was loaded or not, he was in.the commission of an unlawful act. It is,true that he stated that his wife, by turning, brought her hip, the portion of her body struck, in a line with the weapon; but he does not negative the idea that when he “threw it [the pistol] down” he threw it down toward her. Taking the most favorable view of the case as made in his own behalf by the statement. of the defendant, he pointed the pistol, under the impression that it had no cartridge in it, at his wife, and pulled the trigger. The explosion which followed, and resulted in the death of his wife, may have been a surprise to him; but his mere ignorance of the fact that the pistol was loaded does not relieve his act in pointing the pistol at his wife of the element of crime. And the judge properly omitted ¿rom his instruction all reference to the law of involuntary manslaughter in the commission of a lawful act without due caution and circumspection.

Counsel for plaintiff in error in his brief contends that this homicide was an unavoidable accident. If the statement of the prisoner is susceptible of the construction that when he “threw the pistol down” he did not throw it in the direction of, nor point it at his wife, but pointed it in a direction aside from her, and that he fired the pistol accidentally, and his wife, by a sudden movement, brought her body in the line of fire, and there was no fault on his part, then the unfortunate occurrence which resulted in the woman’s death was an unavoidable accident, as counsel insists. But if this last supposition were true, the defendant was guilty of no offense against the law; for in the case last supposed, the homicide would have been committed by misfortune or accident without fault, intention, or culpable negligence on the part of the accused. This theory of the defense was duly submitted to the jury by the court in its charge, and the jury found this contention of the defendant to be untrue.

While there is much evidence in the record tending to show that the accused was guilty of no higher crime than involuntary manslaughter in the commission of an unlawful act, there was, we think, sufficient evidence produced by the State to authorize the jury to find that in a fit of anger produced by a trifling quarrel with his wife, the defendant deliberately shot and killed her,' and that the killing was murder. No error of law having been shown; 'and the evidence authorizing the verdict, we are compelled to affirm the judgment refusing a new trial.

Judgment affirmed.

All the Justices concur.