Tate v. State , 46 Ga. 148 ( 1872 )

McCay, Judge.

This was an indictment for murder, and there was a plea of not guilty generally. Under the proof, we think it was no error in the Court to charge the law of justifiable homicide. The record shows a general denial of guilt, and it was not improper that the Judge should inform the jury under what circumstances one may lawfully kill another, and it would be a strong ease of hypercriticism to say, that a new trial ought to be granted if the Judge allude to instances of justification wholly unlike the case on trial. It is common for the Court to read the definition of justifiable homicide, “the taking a human life by commandment of law, or by permission of law, or in self-defense;” surely it is not error in the Court to do this, even though the case is one one of self-defense alone. That the Judge in this case charged the jury in reference to the law of justifiable homicide, etc., was no harm to the prisoner. In the first place, his plea was “not guilty;” the proof was very plain that the deceased was killed by him, and he was “guilty” unless justified. In the. next place, we have no evidence from the record, that his counsel waived his plea of not guilty, and stood only on the denial of the guilt of murder; as the record stands the denial was of any guilt. We are not prepared to say, that even if the record showed that the counsel had, in the argument, admitted guilt of manslaughter, that the charge of the Judge as to justifiable manslaughter would have been ground for new trial. At best the charge may in that event have been unnecessary. But we are not clear it could even then be said to have injured the defendant. We think the Judge

was in error in saying there must be mutual blows to constitute a mutual combat. There must be a mutual intent to fight. But we think if this exists, and but one blow be stricken, that the mutual combat exists, even though the first blow kills or disables one of the parties. Were there any evidence here of a mutual combat we should be constrained to reverse the judgment. But we are clear that there was before the jury nothing to authorize any doubt even upon their minds that this was not a mutual combat. The deceased showed no sign of a disposition to fight. Pie denied taking up the quarrel of the woman. He stood at his place; he had, or showed no arms. Indeed, he seems to have been very slow even in getting ready to defend himself, since the defendant had about twenty steps to go, and got to him and struck him before he got the double-tree picked up, and in a position even to defend himself. Had he got the first blow and that blow proved fatal, the killing would by him have clearly been justifiable. He sees a man coming at him with an axe, cursing him, threatening to show him what he could, and would do, and his picking up the double-tree and raising it was nothing but the promptings of that universal feeling of self-defense implanted in all animal nature.

The conviction is right; it was not justified only, but demanded by the testimony. The jury were bound, on their oaths, to find as they did, and we do not feel it to be our duty to grant a new trial, because the Judge gave the law wrongly, upou a state of facts which did not exist. Tin's offense was murder. There was no considerable provocation — nothing to bring it to the grade of manslaughter.

Judgment affirmed.