Bailey v. State , 70 Ga. 617 ( 1883 )

Hall, Justice.

1. The court committed no error in charging the jury that it was necessary to lay before them certain rules of law, that they might apply the evidence delivered from the stand to such rules, and determine from the law, as given in charge by the judge, and the testimony of the witnesses, of what crime the defendant was guilty, if guilty at all. It is true that he does not state to them in precise terms, though he does so inferentially, that they are judges of the law and fact; but if the defendant had desired this latter charge, or if he was not satisfied with the statement of the law in that respect, he .should have requested a more specific and precise charge upon the subject. This he failed to do, and it is now too late to take advantage of this omission. 64 Ga., 318; 28 Ib., 200; Wilson vs. The State, 69 Ga., 224.

2. There was no error in the charge that ‘it is not necessary that the deliberate intention to take life should exist for any particular length of time before the killing; that, if it enters the mind of the slayer the moment before he fires the shot, that is sufficient; it is deliberate, intentional, , at the time he makes up his mind to shoot, and if it exists only .that length of time, it is sufficient in law.’ This .statement of the law of malice aforethought, has been too often recognized by this court to admit of question or doubt, and is subject to no modification or qualification whatever. 3 Ga., 326; 11 Ib., 615. N or can we conceive how error can be predicated of this instruction to the jury, that “ malice is not ill-will or hatred, as most people suppose it to be. It is an unlawful intention to kill, without justification, or mitigation, and it is not necessary for that intention to exist any length of time before the killing.” 26 Ga., 156; Ib., 276; 29 Ib., 607.

3. There was nothing in the court’s charge to the jury upon the subject of provocation by words, menaces, threats, or contemptuous gestures, being insufficient to free the person killing from the guilt and crime of murder, that could be tortured into an intimation of opinion, as was supposed by counsel for plaintiff in error, that such was the proof in this case. Nor can we conclude with them, that undue and hurtful prominence was given to this portion of the charge by the fact that the presiding judge thought proper to say this, not only to the jury, but to the “ people out there,” i. e., the spectators, “ under the solemn sanction of his oath ”; or in the addition that “ he wished the people of the county to understand that nothing a man could be called would authorize him to take life.” In justification of his course, the cautious, experienced and able judge who tried this case says the idea had been prevalent that a man had a right to kill for words; that the counsel insisted, before the jury, that they were the judges of the law and fact, and that the prisoner had the right to take life, because the deceased had called him a d — d son of a b — ch ; that at the time of these utterances, the court-room was crowded with ignorant colored people, and hence the admonition was deemed proper to correct a prevalent, pernicious and fatal error that might otherwise lead to lawlessness and bloodshed, upon the slightest provocation. It must be borne in mind that the defendant and deceased both belonged to the class of persons referred to, a class that can scarcely be reached by any other form of admonition than that adopted. His honor rightly thought it his duty to exert his influence for the prevention of crime. This is the main object of all punishment, and it is certainly more in accord with the humane spirit of our law to prevent the commission of offences than to impose penalties to that end after they have been committed. The course pursued on this occasion was unusual, and to that extent, perhaps, may have been irregular; but the circumstances attending the trial, and the state of feeling and opinion developed, it is to be hoped, were likewise unusual, if not exceptional. In delivering the opinion in Malone’s case, 49 Ga., 218, Warner, C. J., said: “This court will avail itself of the present occasion to announce to the public from this bench, with all the emphasis which its judgment can impart, that provocation by words, threats, menaces, or contemptuous gestures will, in no case, be sufficient to free a person who kills another by shooting him, from the guilt and crime of murder. The law so declares, and it is the imperative duty of the court so to administer it, for the protection of society and human life. Mere words, threats, menaces or contemptuous gestures, are no considerable provocation, in the eye of the law, and, therefore, malice shall be implied.” A solemn warning, to which this present bench would, if it were possible, impart increased force and emphasis. See, also, Roberts’ case, 65 Ib., 430.

The admonition to the bystanders, if error at all, did not impose any additional burthen upon the defendant, invaded none of his rights, withheld from him no privilege to which he was entitled under the law, and, therefore, • worked no hurt which could justify the award of a new trial. 42 Ga., 609; 59 Ib., 189.

4. Nothing had been said in this case by any witness, save by the defendant in his unsworn statement to the jury, about any attempt upon the part of the deceased to get a pistol before the shooting, or about his reaching up to the shelf after one; and this statement of the defendant was contradicted by a witness introduced by the state. The judge charged the law as to the effect of the prisoner’s statement as evidence, and charged, in addition, that if deceased had a pistol in his hand, and was attempting to use it, or if one was lying near by, and deceased was attempting to get it from the shelf, or elsewhere, with the manifest intention to use it at that time, then defendant would be authorized to shoot to save himself. Thus far the charge was satisfactory to defendant, but to what follows in immediate connection he excepted, viz: “ But I charge you that no motion a man can make, throwing his hand behind him, or putting it upon a shelf to get a pistol, will justify another in shooting him, unless the circumstances show that the man who was making that motion presently intended to shoot the slayer — to shoot John” (the prisoner). Taken in connection with what immediately follows, this charge, if not altogether correct, is more favorable to the defendant than he could have asked under the law. The jury were instructed that these were questions which the defendant must decide for himself, and must decide them in accordance with the law and facts, and it depended altogether upon these whether he would be justifiable or not; that if deceased had a pistol in his hand, and from his appearance or declarations, or things of that sort, he was going to use it, the defendant need not wait until he was shot, but could,under those circumstances, shoot first; but he must be sure, when he did shoot, that the law would justify him, — in other words, that the actions and declarations of the deceased tended to show that it was his purpose to shoot the defendant, unless the defendant first shot him; that the defendant must show that the circumstances were sufficient to excite the fears of a reasonable man, .that unless he shot first, the deceased would shoot him; if they show that, then he would be justifiable, otherwise he would not. The court then read to the jury §4333 of the Code: “ If a person kill another in his defence, it must appear that the danger was so urgent and pressing at the time of the killing, that in order to save his own life, the killing of the other was absolutely necessary; and it must appear also, that the person killed was the assailant, or that the slayer had really and in good faith endeavored to decline any further struggle before the mortal blow was given; ” and continued to apply the section to the facts of the case, thus: “ It must appear that the danger was so urgent and pressing at the time of the killing that it was absolutely necessary for defendant, in order to save his own life, to kill deceased; and it must also appear that deceased was the assailant, that he was making threats to hurt defendant, to injure him in someway; or if that does not appear, it would be sufficient that the slayer, the defendant, had really and in good faith endeavored to decline any further struggle, before the mortal blow was given. If that appears, it would be sufficient to justify the defendant.” We cannot agree with our learned brother, “that the making of threats by the deceased to hurt the defendant, to injure him in some way,” would constitute the deceased the assailant or would make such a case of necessity under the law as would justify the killing. Threats to hurt or injure the defendant in some way do not make the danger so urgent and pressing at the time of the killing as to render the killing absolutely necessary to save his own life. Besides, this statement is not entirely consistent with that portion of the charge which properly deals with the effect of words, menaces, etc. 65 Ga., 430; 50 Ga., 230; 25 Ib., 701; 57 Ga., 184, 187.

5. A careful examination of this record satisfies us that this prisoner has had a fair and impartial trial, in which all of his rights have been fully accorded; that the law has been most benignantly administered, and that the evidence fully sustains the verdict which has been rendered.

Judgment affirmed.