Cress v. State , 126 Ga. 564 ( 1906 )

Beck, J.

(After stating the facts.) 1. The first ground of the-amended motion for a new trial is as follows: “Because the court-erred in charging the jury as follows: ‘If the weapon used was--one which in its nature was not likely to produce death, the jury might infer a want of malice; and in such a case it would be voluntary manslaughter; but if the killing was done upon a sudden heat of passion provoked by words or abusive language, then, nothing else appearing, the killing would not be voluntary manslaughter,, but would be murder, if the weapon used showed an intent upon, the part of the accused to take human life;’ said charge being-erroneous, and excluding from the consideration of the jury the defense of justifiable homicide set up by the accused.” The exception to the charge appears to be well taken. There was evidence in the case from which the jury would have been authorized to find that the homicide was. justifiable. They might have found, if they had believed the evidence introduced by the defendant, -that the weapon used was one which in its nature was not likely to produce-death, and they might have found from this and other facts in the case that the defendant did not act with malice, but that he struck the deceased with a rock to prevent the latter from making an unlawful and violent assault upon him, and yet they are instructed by the court that if they find that the weapon used was one which in its nature was not likely to produce death, want of malice might be inferred; in which case the killing' would be voluntary manslaughter. This portion of the charge limited the jury absolutely to one verdict, even if they found that the accused had acted without malice and used a weapon not likely to produce death, without reference to the facts and circumstances testified to by witnesses in the-case, which would have rendered the use of such a weapon justifiable. And the error was not cured by giving, in another part of the charge, the law of justifiable homicide. Having given erroneous instructions in one part of the charge, the harmful effects were not removed by a correct charge in conflict therewith, the jury’s-attention not being called thereto with directions as to which of the conflicting instructions they should select as a guide. Florida C. & P. Ry. Co. v. Lucas, 110 Ga. 121.

2. The court having charged the law of justifiable homicide, the failure to charge the law of “urgent danger, as contained in section 73 of the Penal Code,” was not error of which the accused could complain. If such failure was error at all, it was one beneficial to the plaintiff in error, and affords him no ground for complaint. Atkins v. Paul, 67 Ga. 97; Partee v. Georgia Railroad, 72 Ga. 347.

3. The court in the general charge had correctly and fully stated the law of reasonable doubt. That he did not repeat it in charging upon certain particular phases of the defendant’s contentions does not constitute error. McDuffie v. State, 90 Ga. 786.

4. The principle stated in the fourth headnote has been frequently ruled by this court.

Judgment reversed.

All the Justices concur.