Starke v. State , 81 Ga. 593 ( 1888 )

Simmons, Justice.

Starke was indicted for the murder of his brother. He was found guilty, with a recommendation that he be imprisoned in the penitentiary for life. He made a motion for a new trial, which was overruled by the court, and he excepted.

The 1st and 2d grounds of the motion for a new trial are, that the verdict was contrary to law and to the evidence. The 3d ground alleges error in admitting the evidence of Reynolds as to a previous difficulty between the defendant and the deceased, the same being in no way connected -with the killing. The 4th ground alleges error in charging the jury, after defining express malice, the following: “Now applying that law to the evidence in this case, if you believe that this defendant shot his brother, that he died from the wound, and that at the time he killed him, there had been before bad feeling on the part of this boy towards his brother, as manifested by anything he did or anything that he said (I mean the defendant), then that would be evidence of express malice.”

1. We have carefully considered the evidence in this ease, as it appears in the record, and it makes a strong case of murder. It fully authorizes the verdict.

2. There seems to be some conflict in the authorities upon the admissibility of previous difficulties ; some of them holding that a previous difficulty should not be allowed to go to the jury, unless there was a continuance of bad feeling shown from the first difficulty up to the last one ; others holding that evidence of previous difficulties is always admissible to show the state of fooling between the parties. We think there was no error in admitting the testimony of Reynolds in this case as to the previous difficulty between these brothers. It went to illustrate the state of feeling between them, and to show that on a different occasion, the accused had drawn his gun upon the deceased. It is true that Reynolds testified that they were perfectly friendly after the first difficulty. If that was so, the jury should have paid little or no attention to the previous difficulty. Still, it was admissible to go before them for what it was worth. Brown vs. The State, 51 Ga. 502; Shaw vs. The State, 60 Ga. 246.

3. We see no error in charging the jury as complained of in the 4th ground. This charge is objected to probably on the idea that it Avould cause the jury to take into consideration the testimony of Reynolds. We have already ruled that the testimony was admissible, and that the jury might consider it for what it was worth. There was ample evidence exclusive of the testimony of Reynolds, which authorized the court to give this charge, the testimony of Crowley as to what was said by the defendant and by the deceased at the time of the killing, the testimony of the storekeeper as to the purchase by the defendant of the powder and shot, and as to his loading his gun a few minutes before the killing.

It will be observed that no complaint is made upon the ground that the judge said to the jury that certain things mentioned by him would be evidence of express malice. We hold that the charge was not erroneous on the ground complained of in the exception.

Judgment affirmed.