Killen v. State , 50 Ga. 223 ( 1873 )

McCay, Judge.

As there is no exception taken in this case to the charge of the Court, we are driven to the assumption that it was such a charge as, under the evidence, was strictly in accord with the law applicable to the facts as proven. The only ground taken in the motion for new trial is, that the verdict is contrary to the evidence; that, under the laws of this State, the facts do not authorize a conviction of murder. We will not repeat what we have so often said, that this Court has no authority to grant a new trial over the affirmance of a verdict by the presiding Judge, unless the evidence fails, altogether, to justify the verdict. It is to us most manifest that the evidence, as contained in this record, fully sustains the verdict. To call this killing a case of justifiable homicide, would, as we think, be a perversion of the law. The evidence is very strong that at the time of the killing the prisoner was in no danger. He had left the house. He was out of the reach of deceased’s weapon, even if he (the deceased) was indicating any intention to use it. Having in his own hand -a gun, he had the sure means of protecting himself should deceased advance upon him. Besides, if deceased was, at the time, coming at him, the prisoner had every opportunity to get out of the way. There is nothing in his conduct going to show that he (the prisoner) was declining “further struggle,” as required by section 4267 of the Revised Code, in cases of this sort — that is, in cases of self-defense from danger to life during a quarrel, when both sides are not without blame. Nor can the verdict be fairly attacked on the ground that the evidence demanded a verdict of only manslaughter. The jury had a right to believe from this evidence that there was plenty of time, after the hot words and mutual indications in the house of an intent to fight, for the passions to cool and reason to resume its sway ; that the deceased had declared his intent to have no fuss; that he went to the door in a peaceful spirit; that he spoke to the prisoner at the door in a spirit of reconciliation. They had a right, too, from the evidence, to believe that the prisoner, after he got to the gate, in front of the door, “ took the corner of the house on the deceased,” and that, himself protected, and partially hidden, he awaited the coming of deceased to the door, and shot in the spirit of assassination. They had a right, too, from the evidence, to believe that he was not satisfied with one shot, but that he shot a second time and rushed towards deceased after he had given the deadly wound. All this is in the evidence, and the jury may, as they had a right to do, have thought this the true version of the affair. If this be the true version, then, here was time to cool; here was intent to kill; here was the deliberate intent to take away life; and, as the law says, this constitutes the so doing, murder.

It is painful to be the instrument of the law to impose its penalties upon the guilty. But the protection of society against murder is a high duty, and, though mercy may plead in moving terms, yet justice has imperative demands that may not be disobeyed.

Judgment affirmed.