Stokes v. State , 18 Ga. 17 ( 1855 )

By the Court.

Benning J.

delivering the opinion.

A part of the charge of the Court complained of, was as follows: “ There must have been some assault by Henly on the prisoner, or an attempt by Henly .to commit a serious personal injury on him, to reduce the crime from murder to manslaughter.” According to this, no case of homicide can be a case of manslaughter, unless it be one in which the person killing was first assaulted by the person killed. According to this, therefore, if, in a sudden fight, without weapons, and one entered into with equal willingness by both parties, the party who happens to give the first blow kill the other; or, if a husband, taking a man in the act of adultery with his wife instantly kill him, the homicide cannot be manslaughter, but must be murder.

Is this law?

If it is, it must be for the reason that it is made law by the-seventh section of the fourth division of the Penal Code, which is in those words: “In all cases of voluntary manslaughter,, there nmst be some actual assault upon the person killing, or an attempt by the person killed to commit a serious personal injury on the person killing. Provocation by words, threats, menaces or contemptuous gestures, shall in no case be sufficient to free the person killing from the guilt and crime of" murder. The killing must be the result of that sudden, violent impulse of passion supposed to be irresistible; for if there should appear to have been an interval between the assault or provocation given, and the homicide, sufficient for the voice of reason and humanity to bo heard, the killing shall be attributed to deliberate revenge, and punished as murder.”

Does this section make the charge law, and put the cases aforesaid out of the class manslaughter into the class murder ?

If it puts those cases out of the class manslaughter, it must, of necessity, put them either into the class murder or into the class justifiable homicide; for there can be no case of homicide which does not fall into one or another of these three classes. “ Homicide is the killing of a human being of any ago or sox, and is of three kinds: murder, manslaughter and justifiable homicide.” (Code.) According to the Court below, the section puts them into the class murder.

But that class will not receive them unless forced to do it, for they are cases unaccompanied by malice ; and malice is '«the distinguishing mark of all eases of homicide that are murder. They are cases in which is wanting a “ deliberate intention” to take life — such a “ deliberate intention” as “is manifested by external circumstances capable of proof.” 'Therefore, they are cases free from express malice. They -are cases, in respect to neither of which can it be said that It is a case “where no considerable provocation appears, and where all the circumstances of the killing show an abandoned and malignant heart.” Therefore, they are cases free from -implied malice. (Code, 4th Div.)

These cases, therefore, cannot be got into the class murder-, without the doing of great violence to the definition of murder.

Neither can they be got into the class justifiable homicide, without the doing of equally great violence to the law dofim ing or designating justifiable homicide.

What then ? Shall we exclude these cases from every one of the three classes of homicide ? That cannot be, for the' law says that every case of homicide is to be included in some one of those classes.

In some one of the above classes, then, we have to include the cases. Which shall it be 1 Manifestly, that class into which the cases will go most easily — will go by the use of least force. And that one is manslaughter. The definition of manslaughter is such, that if it stood alone, the class manslaughter would receive them readily — without having in the least to be forced. “ Manslaughter is the unlawful killing of a human creature without malice, either express or implied, and without any mixture of deliberation whatever.” (Code, 4th Div.) This is not true of the definition of murder, or the definitions of justifiable homicide. To make the definitions of those two classes of homicide such that they would receive these cases, would be to so change them as to destroy their characteristics. It is true, the definition of manslaughter does not stand alone. It is accompanied by the said seventh section, which declares, that “In all cases of voluntary manslaughter, there must be some actual assault upon the person killing,” &c. But it requires a less degree pf force to lot the' definition, control this section than to let this section control the definition; for if we let the section control the definition, we have also to let it control another definition — that of murder; and so to control that definition as to make it say, that there may be cases of murder without malice.

■ [1.] The result, is, that these cases have to bo considered, not cases of murder, but cases of voluntary manslaughter; And if that be true of these casos, then it may be laid down as a rule, that no case of homicide can be a case of murder, if it is not accompanied'by malice, either express or implied; 'and that every case of homicide not so accompanied, is, notwithstanding the said seventh section, a caso of manslaughter^ unless it be a case of justifiable homicide.

Is that section, then, to have no effect ? By no means. It is to be used to help us arrive at what is malice — implied malice, . “ Malice shall bo implied where no considerable provocation appeal's, and where all the circumstances of the killing show an abandoned and malignant heart.” And that section says: “Provocation by words, threats, menaces-or contemptuous gestures, shall, in no 'case, be sufficient to free the person killing from the guilt and crime-of murder.” This is as much as to say, that provocation by “words,” &c. is not “ considerable provocation”; and that if life be taken in consequence of such provocation, it will be taken under circumstances which will “ show an abandoned and malignant heart. ’ ’ In short, it is as much as to sáy, that notwithstanding any provocation by “words,” &c. malice shall be implied.

I incline, very much, to think that the true meaning of this seventh section is this, viz: in all cases of homicide, in which the provocation is but “words,” &c. the offence shall not be reduced from murder to manslaughter ; in all cases of homicide, where the provocation is “.some actual assault,” the of-fence may be reduced from murder-to manslaughter, if there is not a sufficient cooling time between the. assault and the killing. This, I incline to think, is the .true meaning and th'e whole meaning. I cannot think the section was intended to affect cases, in-which the provocation was neither “words,” fcc. nor “ some actual assault,” — was.intendedto affect the case, for example, of the man whose provocation is an act of adultery with his wife, committed under his own eyes. (4 Black. Com. 192.)

If what has been' said is time, it follows that the Court below, in charging the Jury that “ There must have been some assault by Henly on the prisoner, or an attempt, by Henly, to commit a serious personal injury on him, to reduce the., crime from murder to manslaughter,” stated the rule too broadly, and that the Court should rather have charged the Jury, that although there might have been no assault committed by Henly on Stokes yet, if Stokes had other-and very great provocation from Henly, such provocation as that which a man has who takes another in the act of adultery with his wife; and if all the circumstances of the killing showed that he acted from a sudden, violent heat of passion, occasioned by such provocation, and not from the promptings of. an abandoned and malignan/ heart, of all which they must judge from the evidence, then the homicide would bo no more than manslaughter.

The Court held, that to impeach a witness' on the' score of character or reputation, it ifc -necessary that the examination be confined to'his “ character for'truth and veracity.”

[2.] In Phillips on Evidence, 1,292, it is said that “The regular mode of examining into, general character, is to inquire of the witnesses whether they have the means of knowing the former .witness’s general character; and whether, from such knowledge, they would believe him on his oath?” With Phillips agree Starkie, (Stark. Ev. 182,) Greenleaf, (Green. Ev. Sec. 461,) and. Cowen & Hill (Cow. & Hill’s Notes to Phill. Ev. note 531,) as also does the case of Rex. vs. Bispham, (4 Carr. & P. 392.)

We think that the weight of. authority is with Phillips ; and therefore, that the rule, as laid down by the Court, is too narrow.

Wherefore, it seems to us, that under the New Trial Act of 1854, a new trial ought to fee granted.