Pool v. State , 87 Ga. 526 ( 1891 )

Lumpkin, Justice.

1. When it is thoroughly understood what verdict the jury desire to find, thtere can be no possible error or injury to anyone in allowing the solicitor-general, in open court at their request, to put the verdict in such form as will legally express the finding they wish and intend to make. Brantley v. State, 87 Ga. 149, 18 S. E. Rep. 257.

2. In criminal cases, the jury must be satisfied beyond a reasonable doubt of defendant’s guilt before he can be legally convicted ; and a request to charge “ if there is any doubt as to whether the defendant is guilty, it is the duty of the jury to acquit,” was properly refused. It is not necessary that the jury should be satisfied beyond all doubt of defendant’s guilt, and this, in effect, is the meaning of the charge requested. With doubts about the law juries are not concerned.

3. It has been frequently ruled by this court that unless a request to charge the jury is in all respects pertinent and legal, it should be declined. Where a request is in part proper and in part improper, the court cannot give it as a whole, and is not bound to separate the legal portions of it from those which are not so. The law infers guilty intention from reckless conduct; and where the recklessness is of such character as to justify this inference, it is the same as if defendant had deliberately intended the act committed. When, therefore, one recklessly fires a pistol with criminal indifference as to the consequences, and another is killed, it is not necessary, in order to constitute this killing murder, that the accused should at the time of firing have been engaged in the commission of some unlawful act, independent of and in addition to the reckless firing itself. The above remarks will, we think, be sufficient to show 'that the following request was properly refused : “ If the defendant, when his pistol went off and killed, deceased, had abandoned or was free from all evil intent, it could not be that at that time he was engaged in the commission of any unlawful act. But unless at the time of the killing he was engaged in the commission of an unlawful act, he could not be guilty of murder, or of involuntary manslaughter in the commission of an unlawful act. If a man, though intending to commit an unlawful act, abandons his intent to do so, and afterwards by accident kills a man, the killing is not murder, nor is it involuntary manslaughter in the commission of an unlawful act.” Under this request, the jury might have acquitted defendant, although satisfied by the evidence that he was guilty of criminal negligence in firing the pistol at the time it went off and killed deceased.

4. When the court properly charges concerning the law of reasonable doubt, as was done in this case, it is not bound to instruct the jury as indicated'in the 4th head-note. It is for the jury to determine when there is reasonable doubt of defendant’s guilt and not for the court to inform them under what circumstances there is or is not room for such doubt.

5. When the evidence shows conclusively that the defendant handled his pistol in such a reckless manner as to make it dangerous to bystanders, the court properly refused to charge section 4302 of the code, relating to the law of homicide by misadventure.

6. The observations made above in reference to the 4th head-note arc also applicable- here, the more especially as the evidence fails to show any conduct on the part of defendant which would make the request referred to in the 6th head-note appropriate.

7. One ground of the motion for a new trial assigns as error the court’s allowing evidence to go to the jury relating to a subsequent difficulty between defendant and another party, but does not specify what this evidence was. We are, therefore, unable to determine whether the admission of this evidence was such error as would require a new trial or not. It appears from the testimony of one of the State’s witnesses that after the killing, defendant did have a difficulty with another person. It occurred so soon -after the homicide as to be apparently a part of the res gestee of the killing, and may have been material in determining whether the shooting was' willful or accidental. The evidence just referred to was to the effect that defendant struck and shot at a bystander who appeal's to have done' nothing but reproach him for having killed deceased.

8. The court, in effect, charged the jury that having a pistol at church would be an unlawful act, and then added: “But if you believe he had a pistol under such circumstances as rendered it unlawful to have it, and that he fired it off voluntarily, intending to fire it, and in such firing it hit Moon and killed him, then he would be guilty of murder.” This charge, we think, was error. It amounted to instructing the jury that unlawfully having a pistol at a church, and there killing another with it, would necessarily be murder if the firing was voluntary. This, in our opiniou, was stating the law too strongly against the defendant. If the shooting was intentional, but simply negligent, and resulted in the death of another, which was not intended, it could not be more than involuntary manslaughter. On the other hand, if the shooting was intentional, and was done so carelessly and recklessly that the law would imply an actual intention to kill from the mere wantonness of the act, and death resulted, it would be murder. This question was not properly submitted to the jury, and for this reason a new trial will be ordered.

9-10-11. The head-notes state all that need be said concerning these grounds of the motion fora new trial.

Judgment reversed.