Smarrs v. State , 131 Ga. 21 ( 1908 )

Fish, C. J.

(After stating the foregoing facts.)

1. The testimony of J. D. Stanley, set forth in the foregoing summary of facts, as to the alleged inculpatory statement of the accused, was properly admitted over the objection “that no proper foundation for admitting confessions had been shown, and that in admitting this testimony the jury were led to believe that the defendant had made a confession of his guilt, when in point of fact he had not.” It does not appear that such statements were admitted as a confession of guilt; and the court did not consider them as such, -for no instructions were given on the subject of confessions. If, however, they could be considered as a confession, it appears that they were made voluntarily, without being induced by another, by the slightest hope of benefit or remotest fear of injury..

2. The court charged the jury as follows: “If it is shown here that the party alleged to have been killed was killed by the defendant, if he shot him with a pistol, as charged in the indictment, and if it is shown to have been in this county, some time previous to the time this bill of indictment was found, if all that appears, then the burden is on the defendant to show some fact, either to justify the killing or to mitigate it, that is to' say, to justify the killing altogether or to mitigate it so as to reduce the grade of the homicide. Now, I charge you, that the evidence to do this, that is to say, to justify or mitigate it, may come from the evidence offered by the State to prove the killing, or the evidence offered by the State in making out its ease; or it may come, gentlemen, from the evidence offered by the defendant; or it may come from the defendant’s statement, if you should credit it.” The errors assigned upon this charge were: ‘(1) that it “led the jury to believe that when the killing itself was shown by the State, . . the obligation was on the defendant to point out from the testimony in the case particular facts or things which might otherwise be considered by the jury in mitigation of the offense;” and (2) that it required “the jury to actually credit . . the .statement of the defendant before they would be authorized to give the same such consideration as might be necessary to mitigate or reduce the homicide from murder to some lower offense, or to justify an acquittal of the defendant,” whereas such statement might be sufficient to create such reasonable doubt in the minds of the jury as to authorize an acquittal, or a verdict for a lower grade of homicide than murder, even though the jury might not credit the statement.

While the principle involved in the charge might have been more aptly expressed (see Mann v. State, 124 Ga. 760, 53 S. E. 324, 4 L. R. A. (N. S.) 934; Burley v. State, 130 Ga. 343, 60 S. E. 1006), the objections to the charge are without merit. The first objection deserves no further comment. As to the second, we will only say that it is difficult to understand how the jury could give the prisoner’s statement any effect whatever if they believed it unworthy of credit. Moreover, the court followed this charge with full and correct instructions as to the prisoner’s statement and. reasonable doubt.

3. Error was assigned upon the following charge: “There can not be murder without malice, either express or implied, that is, with a deliberate intent to kill. There can be no manslaughter when there is any malice, either express or implied.” The objections to the charge were: (1) that “it led the jury to believe that where there is a deliberate intention to kill, the defendant must be found guilty of murder,” whereas a deliberate intention to kill may exist under circumstances which might justify the killing or grade it below murder; and (2) “that it led the jury to believe that should the accused have had malice toward the deceased, he must be found guilty of murder,” whereas “malice may exist on the part of the accused toward the deceased, and at the same time the defendant may be justified in the killing, or may be guilty only of a lesser offense than murder.” The court, in immediate connection with this excerpt from the charge, defined to the jury the crime of murder, the meaning of malice as an essential element thereof, and the offense of voluntary manslaughter, and the portion of the charge now under consideration was merely explanatory of the distinction between murder and voluntary manslaughter. We do not think the charge complained of, especially when considered in the connection in which it was given, was calculated to impress the jury as claimed in the exceptions. For the judge to inform the jury that “there can not be murder without malice, either express or implied, that is, with a deliberate intent to kill,” is far from instructing them that they must convict of murder whenever malice or a deliberate intent to kill is shown, without regard to whatever else may be made to appear in connection with the homicide.

4. In connection with instructions defining voluntary manslaughter, the court charged: “The serious personal injury spoken of means an injury greater than a provocation by mere words, and less than a felony. . . It means a bodily injury, and not a personal affront or personal wrong; an injury that may deprive of life, and which must be prevented by a resistance of the like sort.” One of the exceptions to the charge is, that it was calculated to lead the jury to believe that the only attack upon the accused which could reduce the homicide from murder to a lower offense was an injury which might deprive him of life and which had to be prevented by a resistance of a like sort. This exception was well taken. A similar charge was under consideration in Burley’s case, supra, and was there held to be. erroneous, but harmless, as in that case neither the evidence’ nor the prisoner’s statement warranted a charge on voluntary manslaughter and therefore an inaccuracy in defining that grade of homicide could not have injuriously affected the accused. We can not say, however, that voluntary manslaughter was not involved in the present case.

5. Another charge complained of was: “If one man approaches another with a knife or pistol, or a weapon like that, and the man being approached honestly believed that his life was in danger, and he did not provoke the difficulty, and the man is coming on him to take his life, or he honestly believed his life was in danger, or a serious personal injury is about to take place to him amounting to a felony, and he kill another under those' circumstances, to protect himself from that kind of an assault, that would be justifiable homicide.” The assignment of error upon this charge is, that “it in effect instructed the jury and led them to believe that when a man provokes a difficulty, he can in no event justify the killing of the party with whom the difficulty is provoked, when, as a matter of law, one may provoke a difficulty, which provocation may be met with such violent attacks by the party provoked as to be out of proportion to the provocation offered, and of such a character as to justify the person provoking the difficulty in killing the person provoked, or to reduce the killing from murder to some lower offense.” Under the facts of this case, this exception was also well taken. In Butler v. State, 92 Ga. 601, 606 (19 S. E. 51), the legal principle here involved was thus announced: “Where it is said in the decisions of this court that before a homicide can be treated as justifiable it must appear that the slayer was ‘free from fault,’ or did not ‘provoke the difficulty,’ this is to be understood as meaning, not that he must not have done anything which might in the ordinary sense of the word be regarded as provocation, but that the provocation must not have been such as would in law be sufficient to justify the attack against which he was defending himself when the homicide was committed. Anything short of such provocation as this would not put the slayer in any degree in the wrong if it became necessary to kill in his own defense.” Citing Boatwright v. State, 89 Ga. 140 (15 S. E. 21). See also Fussell v. State, 94 Ga. 78 (19 S. E. 891). In the case now in hand the jury may have considered that the accused provoked the difficulty by throwing a rock which fell near the fire at which the boys, or some of them, were warming. If the deceased, by reason of the throwing of the rock by the accused, attempted to commit a felonious assault upon him, and the accused killed the deceased to prevent such an assault, then the homicide was justifiable, for such provocation by the accused could not justify the felonious assault against which he was defending himself.

6, 7. The court did not err in charging, in effect, that mere words, however vile, will not justify the taking of human life; nor in instructing the jury on the doctrine of reasonable fear in the language of the Penal Code, §71.

The judgment refusing a new trial must be reversed for errors in the charge as shown in the fourth and fifth divisions of this opinion.

Judgment reversed.

All the Justices concur.