Smith v. State , 49 Ga. 482 ( 1873 )

McCay, Judge.

It is a mistake to suppose that if one kill another in the heat of passion, that such killing cannot be murder. Every man is responsible to the community for the control of his temper, and if for some small provocation he permits himself to get into a fury and kills a human being, it is murder. There must be provocation such as justifies the excitement of passion. Provocation by words, threats and contemptuous gestures, is, by the very terms of the Code, insufficient. So, also, if the passion be aroused for just cause, the law holds a man responsible for failing to grow calm in a reasonable time. If, after sufficient time for the voice of reason and humanity to be heard, the killing is done, it will be murder.

Under the facts of this case, we think the defendant was guilty of murder. The language of his wife was not sufficient to justify that sort of passion which the law calls heat of passion, supposed to be irresistible. And when she fled in terror to her sister, and cowered in fear behind her, it was the act of a fiend to take her life, in spite of her appeals for mercy. We are free to say, that we would have been better satisfied had the Judge kept more within his proper sphere in his charge. It is surely proper for the Judge to say to the jury, “if the proof satisfies your mind that such and such facts — narrating them— are true, then the defendant is guilty.” This Court has never held that the jury, in a criminal case, are not judges of the law and the facts. We have said, and we say now, that a jury has not a right, under the laws of this State, to make.law, or to construe and expound law. They are bound by the law, as it is written and given to them in charge by the Court. That is the means, and the only means, by which they are to find out what the law is, just as the evidence put before them, oral and written, is the only means by which they are to learn the facts. But when they have thus got the law from the Court and the facts from the witnesses, they are to judge of them,, they are to say, What are the facts, according to the testimony? What is the law, according to the charge of the Court ? They are then to judge of what the verdict ought to be, considering what the law is and what the facts are, and to find accordingly. The result of this application of the facts to the law is the exclusive province of the jury. The Judge, in his charge, should be careful not to infringe on this right. He should give them the law, in general terms, as suggested to him by the charge in the indictment and by the, evidence, taking care not to usurp the province of the jury.

We do not intend, by these remarks, to lay down a positive rule. It is sometimes impossible to give the law intelligently except by reference hypothetically to such facts as make the crime. All we say is, that the charge ought to be given, in all cases, so as there shall not be any dictation by the Court to the jury. It is their prerogative to declare whether, under the law as given in charge, and under the evidence, they do or do not judge the defendant guilty.

Judgment affirmed.