Smith v. State , 174 Ga. 878 ( 1932 )

Gilbert, J.

George Smith was convicted of murdering his wife, Nella. The killing occurred on Wednesday, July 1, 1931. On the previous “Monday morning” Smith was informed by another that his wife had had illicit intercourse with James Hanks. On the day of the killing, a number of negroes, including Nella Smith, had gathered at a church for the purpose of cleaning off the cemetery. While the work was in progress and after Nella had been there for some time, George Smith came up in an automobile with several other men. At the time of his arrival Nella was sitting under a tree with a baby on her lap. Smith went around the church and disappeared from view. Shortly afterwards he came back into view. He asked a witness, “Have you seen James Hanks here to-day ?” and upon receiving a negative answer said, “I heard that he was looking for me and had a gun to kill me, and I would not pay any attention to it, but I met four men in my car looking for James Hanks, and if I had found him one of us would have died.” He asked this witness to go and tell Nella that he wanted to speak to her, and the witness refused. Smith then “walked up behind Neller,” saying “Neller, step here a minute.” She “returned no answer, and he walked in front of her and said, ‘Aint you coming?’ and she still said nothing, and about that time he pulled a pistol.” Nella jumped up and ran with the baby in her arms, asking him not to shoot her. He started chasing her, but Nella’s sister ran into him and interfered momentarily with his pursuit. After she had run around the cemetery for a distance of about 260 yards she fell down, the baby rolling away on the ground. Smith ran up, put his left hand on her shoulder, and fired one shot from the pistol into her body while she was on the ground and trying to get up. He then fired three more shots into her body, and she died within a few moments. One witness testified that Smith had stated to him that he intended to have his wife assist him in gathering his crop, and then to go to Florida with a woman who was the wife of another man. The defendant made the following statement : “Well, all the time I would go to the field, and when I went back she would be gone and never have something for me at noontime, and I would have to take my dinner at my sister’s. So I heard that she was going with this man, and I went and ask Doodle-finger about it, and he told me what he saw him and her doing. That was Monday morning, and I went to this church. I wasn’t looking for her. I was looking for a man, and I called her and’ told her that I wanted to speak to her, and she said she had him. I would not have killed her for nothing in the world, for I thought a heap of her.”

One ground of the motion for a new trial, this being the ground chiefly insisted upon in the oral argument of the case, complains of a refusal to charge the jury as follows: “I charge you, gentlemen, if you believe from the evidence in this case, or from the defendant’s statement, that his wife was guilty of adultery, and such conduct and infidelity on her part was communicated to him by her or other witnesses, and that such communication made by her to him or other witnesses so aroused his passion until, in the heat of such passion excited by the words and conduct of his wife, shoots and kills his wife in such circumstances as to justify the excitement of passion, and that defendant was not actuated by malice or a spirit of revenge, I charge you that such killing would be voluntary manslaughter and you would be authorized to so find the defendant guilty of voluntary manslaughter.” It is insisted that the charge, duly requested in writing, was authorized by the prisoner’s statement, and that the refusal of the request constitutes reversible error. The majority of the court hold that the trial judge erred in failing to give in charge the requested instruction submitting the issue of voluntary manslaughter. Penal Code, § 65; Jackson v. State, 135 Ga. 684(2). Under'the provisions of our statute as amended by the act of 1899 (Ga. Laws 1899, p. 41), it is a question for the jury to determine what is sufficient cooling time. The writer, under the facts of this case, dissents from the ruling here made.

Another ground of the motion complains, and this question was also referred to in the oral argument, that the court erred in instructing the jury, on the subject of justifiable homicide, that “if you should believe that the defendant did shoot and kill the person named in the indictment, . . and that at the time of such killing the circumstances were not such as to excite the fears of a reasonable man that the defendant was in danger from the deceased, and furthermore that the circumstances were not such as to convince a reasonable mind that it was necessary to kill the deceased in order to prevent the seduction [italics ours] of the wife of the defendant by another, or to prevent an act of adultery on the part of another with the wife of the defendant, but that the killing was done deliberately and in revenge for a past act,” etc. It is unnecessary to repeat the entire excerpt quoted in the motion. It is sufficient to say that the exception is to the use of the word “seduction.” It is argued that a married woman can not be seduced, and therefore to use the word “seduction” with reference to the facts of this case was erroneous and injurious to the accused; and furthermore that the word “another,” used repeatedly in said excerpt of the charge, was used in such manner by the court as to impress upon the mind of the jury that the defendant was being tried for the murder of James Hanks, the alleged co-adulterer with the wife of the defendant, when the accused was in fact being tried for the murder of his wife Nella Smith. The criticism on the charge as quoted is not justified. The use of the word “seduction” instead of the word “adultery” furnishes no cause for reversing the judgment. The word was used not technically, as would be the case if the accused was being tried for seduction or adultery. It was used in a more general sense, such as we find in Webster’s Dictionary, to mean a wrong-doing, or the offense of inducing a woman to surrender her chastity, or the means of corrupting. It has been used in the latter sense by courts of review, as in Wilkerson v. State, 91 Ga. 737, where a similar case was under consideration. As to the charge being calculated to mislead the jury and to cause them to believe that the defendant was on trial for the murder of Hanks instead of his wife, that is so extremely unlikely that it can not be deemed ground for setting aside the judgment.

There are other grounds of the motion, which have been carefully considered, but they do not show error and are not of such character as require special discussion.

•Judgment reversed.

Bussell, G. J., Beck, P. J., and Atkinson and Hill, JJ., concur.