Brown v. State , 28 Ga. 199 ( 1859 )

By the Court.

McDonald, J.,

delivering the opinion.

The defendant was indicted for the offence of murder, as principal in the second degree. The party charged as principal in the first degree has been tried and convicted of voluntary manslaughter. This plaintiff in error, on his trial, was convicted of voluntary manslaughter also. After his conviction, he moved, by bis counsel, for a now trial on twenty three grounds, all of which appear in the statement of the case hereto prefixed. The court below, after liearing argument on the motion, refused a new trial, and the plaintiff in error excepts to that judgment.

1. The first ground in the motion for a new trial is predicated on the refusal of the court to allow’ the counsel of plaintiff in error to read to a witness under examination, evidence given by him, and which was taken down in writing on the trial of the party accused as principal in the first degree. If they wished to road the testimony to the witness to refresh his memory as to wliat ho had testified before, it was clearly inadmissible. It was not a memorandum made by himself, which, without considering other grave objections to it, wTas a quite sufficient rear-son for excluding it, if offered for that purpose. If the object was to discredit the witness, the presiding judge very properly ruled, that they might acquaint themselves with the evidence formerly given by the witness, and interrogate him as to testimony he delivered on the trial of the other defendant, and contradict him, if they could, by witnesses who heard him testify, but not by the testimony reduced to writing on that trial. It does not apappear that tho counsel examined the witness as suggested by the court. If they bad so interrogated him, and had then proven that the evidence proposed to be read was the testimony of tho same witness, and that it was truly taken down at the time, we will not say that the court ought not to have admitted it. The record does not so present the point.

2. The next ground in the motion is founded on the refusal of the court to permit a witness to be cross-examined who had been sworn by the prosecution, and to whom but a single question bad been propounded, and that not answered, on account of an objection made by prisoner’s counsel. The proposition of the counsel for the plaintiff in error was to examine him at that time, not to explain any point in his testimony, because he had delivered none, but to examine him on matters deemed important to the defence. We think the court was right. When á witness is sworn by one party, but is not examined by him, the opposite party has the right to- call him as his own witness and to ask him leading questions as in a cross-examination, unless the witness was sworn through mistake, or shows a manifest bias in favor of the party against whom he was first called. Bac. Ab. Evidence E.

3. That the presiding judge refused to allow the witness Robert Wise to testify whether he heard Holcomb, immediately after the difficulty, cry out to Wooten, the sheriff, to arrest the Browns, for they had killed Harvey Williams, is made the third ground in the motion for a new trial. We can see no relevancy, in this question, as it is presented in this record, to the issue before the jury. An.swered either way it could not have any possible influence. If the witness did not hear the call, it is no evidence that Holcomb did not call. There was, at the time, great bustle and confusion, and it does not appear that the attention of the witness was directed to that particular matter.

4. Because the court charged the jury that presence and participation in the act committed is evidence from which the jury might infer consent and concurrence, is made the fourth ground in the motion for a new trial. The plaintiff in error contends that this charge is not the law, that the court omitted one essential element in the crime, charged in this indictment. The prisoner was charged with murder as principal in the second degree, and he was on his trial for that offence. The charge of the court must be considered in reference to the accusation. The principal in the second degree could not be convicted of murder without a felonious design. He may have perpetrated the homicide, or participated in it, but without a felonious design ho could not be guilty of murder. A person charged in the indictment as principal in the second degree, who is present aiding and abetting, without any felonious design, or without participating in a felonious design, cannot be guilty of murder. He must have known the purpose and intent of the perpetrator of the act, to have participated in his design. The terms “consent and concurrence” here, must mean consent and concurrence in the killing, and if there were consent and concurrence in that by the prisoner, be must have been guilty of murder, for consent and concurrence imply thought, deliberation, and a conclusion of the mind — tiecisión. But if there was no design to commit a felony on the part of the perpetrator of the act, or if there was, and it was unknown to him who was present aiding and abetting, and he had none himself, there could have been by him no consent or concurrence in the act, and his being present aiding and abetting the act which resulted in a killing, cannot be evidence of consent and concurrence in the homicide. If the jury had convicted the plaintiff in ei’ror of murder, there would have been ground of grave complaiut of this charge ; but he was convicted of manslaughter only, and he co'uld not have been prejudiced by it, as the jury must necessarily have found that he was not guilty of “consent and concurrence.”

5. Shildrake Brown was charged with murder as principal in the first degree, and the plaintiff in error as principal in the second degree ; and if Shildrake Brown assaulted the deceased with a deadly weapon, and his intention to assault him with such weapon was unknown to David Brown, and he supposed that his object was to assault and beat deceased only, and he intended to participate in the assault and battery only, and participated in no design to kill, he was guilty of manslaughter only — while the actual felonious perpetrator was guilty of murder. 1 Chit. Cr. Law 258.

6. The fifth ground in the motion for a new trial is alleged error, in the charge of the court, “that if the defendant on his trial was convicted with the killing of the deceased, if he aided, abetted and participated therein, and had not been assaulted by the deceased, and no considerable provocation appears, the law in such case implies malice, and he is guilty of murder.” This charge of the court is subject to the same objection as that part of the charge last considered. The charge of the court ought in all case to expound the law as applicable to the facts of the case in proof, and should go no further. There is no evidence that the prisoner on his trial had a weapon of any sort; there is no evidence that he knew the design of his son to kill; or that he was armed with a deadly weapon — the term “connected,”as used in the charge is abroad expression, and is given a broad application. The prisoner may have been connected with the act of killing, when he may not have been connected with the intention to kill; and if he was not connected with the intention as well as the act, he could not be guilty of murder. But as the accused was not found guilty of murder, the charge did him no wrong.

7. The charge of the court making the sixth ground in the motion for a new trial, is more favorable to the plaintiff in error than the evidence in the case would warrant. There is no evidence in the record that the deceased made any assault upon him, or of an attempt by the deceased to commit a serious personal injury upon him, or that he otherwise gave him considerable provocation. On the contrary, the evidence shows that the deceased acted on the defensive throughout, and that whatever injury he inflicted on the prisoner, was done while he was thus acting. Yet-the court in his charge gave the prisoner the benefit of the supposition the deceased had acted aggressively towards him.

There is nothing in the evidence to authorize a charge of the court on the sixteenth section of the fourth division of the Penal Code; and the counsel for the plaintiff in error acquiesced in the omission if there was any. lie made no request of the court in regard to that matter.

8. In my judgment, there was nothing in the evidence in this case requiring a charge on involuntary manslaughter. The general definition of involuntary manslaughter is the killing of a human being without any intention to do so, and yet the same section of the code which gives the defition, shows that the killing of a human being without any intention to do so, (contrary to the mere definition,) may amount to the crime of murder. It is said that an assault and battery is an unlawful act, and if it be committed without any intention to kill, it can be but involuntary manslaughter. An assault and battery with a bludgeon, of such size as if used on a human being would likely produce death, is an unlawful act; and if it be used positively without any intention to kill, but nevertheless death does ensue, under the definition, it would be involuntary manslaughter; but under the law it would be murder, because an assault and battery with such an instrument naturally tends to destroy life. If the unlawful act committed by the accused be to inflict a voluntary personal injury on another, or & voluntary injury upon the person of another, the voluntariness of the act and intent to injure the person must characterize the crime. Every statute must be construed, and this interpretation of the act harmonizes with the legislative construction of it so far as it relates to the offence of murder. We therefore think that a new trial ought not to have been granted on the alleged error in the charge as specified in the 8th ground in the motion.

9. If the counsel for the plaintiff in error desired the charge of the court to the jury on the several matters of which they now complain in the 9th, 11th, 12th, 19th, 20th and 21st grounds in the motion for a new trial, that the court failed or omitted to charge, they ought to have submitted written requests to the court for said instructions to the jury. Not having done so, they must be held to have acquiesced in the failure or omission, if indeed, there were any.

10. There is no specifiation in the 10th ground of the motion, of any matter in which the charge of the court was calculated to mislead the jury, and the exception is too vague, general, and uncertain to be considered. The act requires that the errors complained of shall be plainly and distinctly set forth in the bill of exceptions. Acts of ’55 and ’56, 201.

It is unjust to the opposite party who might be surprised by an elaborate argument on a point in the charge which he might consider unexceptionable. The excepting party ought to understand his own case, and point out the errors of which he complains.

The exception in the thirteenth ground in the motion has already been disposed of in considering the fourth ground.

11. The eighteenth ground makes the point, that after the conviction of the defendant, charged with murder as principal in the first degree, of the offence of voluntary manslaughter only, the defendant on trial, who is charged as pi’incipal in the second degree, can not be convicted of any crime under the bill of indictment. This point has, in effect, been decided by this court in the case of Boyd vs. The State, 17 Ga. Rep. 194. The point there was, whether the defendant charged with murder as principal in the second degree, could be tried before the defendant charged as principal in the first degree, and it was held that he could. The authorities then sustain the decision of the court in this case. But Wallis’s case is an authority directly in point. He was tried at old Bailey, in 1703. The indictment in that case was against A for murder, and also against Wallis and others as persons present, aiding and abetting A therein. A was first tried upon this indictment and acquitted, and afterwards Wallis was tried upon it. Holt, C. J., determined that though the indictment be against the prisoner for aiding and assisting and abetting A, who was acquitted, yet the indictment and trial of that prisoner (Wallis,) was well enough; for all are principals, and it is not material who actually did the murder.

12. A juror cannot be allowed to impeach his own verdict, and therefore the twenty-second groundiu the motion cannot be supported.

13. According to the affidavit of Cline, of whom it has been said new evidence was discovered, it appears that he will only testify to one fact in the case differently from another witness who had given positive evidence. The evidence of Cline is negative, and it ought not to have counterbalanced the testimony of a positive witness, if he had given it on the stand. But Cline had given evidence and testimony so obviously of some weight to the defence, and which, being present, be must have been able to give according to his recollection of it, ought not to have escaped either the defendant or his counsel.

14. The remaining grounds from the 14th to the 17th inclusive, that the verdict of the jury is contrary to evidence: against the weight of evidence ; contrary to law; and contrary to and against the charge of the court, may be disposed of in a few words. What we have already said in disposing of the other grounds in the motion is sufficient on the point that the finding of the jury was contrary to law. The charge of the court, so far as it respects the crime of manslaughter, we have held to be right and the verdict of the jury conforms thereto. As to the verdict being against the evidence and the weight of the evidence, we will refer briefly to some of the leading facts in proof, and which are uncontraverted. .On the night of the homicide the deceased and this prisoner bad some difficulties in which no deadly weapons had been used, the deceased acting on the defensive and endeavoring to avoid a personal contest. They had fought, but their fight had ended and the deceased was in the back yard. At this time the soil of tlie prisoner came in and asked him what was the matter. He replied that “Harvey Williams had scratched him.” He enquired for Williams, and prisoner told him he had gone out at the back door. The two Browns went immediately to the door, when the son instantly inflicted the mortal blow, the prisoner striking the deceased with his fist at the same time. There was no considerable provocation, if any, and the circumstances of the killing were such as to imply malice on the part of the sou who killed the deceased. He used a deadly weapon, and that is evidence of malice and felonious intent. It does not appear that the prisoner knew the purpose or intent of the slayer, or that he intended to use a deadly weapon. But he committed an assault and battery on the deceased, and intended to do him a personal injury, which involves him in the guilt of manslaughter of which the jury convicted him. ¥e therefore sustain the judgment of the court below.

Judgment affirmed.