Horton v. State , 1904 Ga. LEXIS 533 ( 1904 )

Lamar, J.

No written request therefor having been presented, the failure to- charge on the credibility or impeachment of witnesses affords no sufficient reason for the grant of a new trial. We find no error in any of the other assignments, except in that relating to the court’s failure to charge on the subject of manslaughter. The judge charged the law of self-defense, and the evidence which made that proper also called for an instruction on the subject of manslaughter. Indeed, as we understand it, the trial judge did not base his omission to charge thereon upon the ground that there was no evidence to warrant the same, but from -the note to the motion for a new trial it is inferable that his silence in this respect was due to the fact that one of defendant’s counsel “insisted that there was no manslaughter in the case; that it was a case of self-defense,” and the other “insisted that he was justifiable because of invasion of defendant’s home.” Plaintiff in error is not responsible for the verbiage of the note, and therefore it is to be construed, not strictly against him, but liberally in his favor. We conclude that the note states what was the contention of counsel in argument, not a formal .admission, as in Coney v. State, 90 Ga. 143, and Griffin v. State, 113 Ga. 281. It is true that a party can not obtain a reversal for an error which he has invited, as by a request to charge. Quattlebaum v. State, 119 Ga. 433. But because counsel insist that their client is not guilty of anything, he does not thereby lose the benefit of every defense warranted by the evidence. Parties are frequently held to their “ theory of the case,” and can not'rely on one in the lower court and on another here. But testimony not sufficient to sustain a plea of self-defense may yet be sufficient to require a charge on the law applicable to manslaughter. If the jury had believed the entire statement of the accused, and that he acted in self-defense or under the fears of a reasonable man, they could have found him not guilty. They may have believed only a part of his statement, or only a part of that tending to confirm his statement, but that did not necessarily mean that they should convict of murder. It was necessary, in view of the record, that they should be instructed as to what they should do if they found that, while Pearson was making an attack, it was not a felonious assault, and also what they should do if they believed that Pearson was making an attack, but that it was not of a character sufficient to excite the fears of a reasonable man. As to these points, of course, we do not not mean to express any opinion, but under the evidence there were three possible verdicts: — murder, manslaughter, and justifiable homicide. The court properly charged as to the first and last, but failed to give any instructions as to the second. Considering all of the circumstances of the case, this omission deprived the defendant of an' instruction on a vital and material matter, the right to which he did not lose because his counsel argued that he was completely justified in what he did, and it entitles him to a new trial. Hatcher v. State, 116 Ga. 619; Kim-ball v. State, 112 Ga. 541; Chestnut v. State, 112 Ga. 367 (4).

Judgment reversed:

All the Justices concur, except Candler, J., who dissents.

Candler, J.

In my opinion the decision of the majority is in conflict with the rulings of this court in the cases of Cochran v. State, 113 Ga. 736, Quattlebaum, v. State, 119 Ga. 433, Harris v. State, 120 Ga. 169, and Bobinson v. State, post, 312, as well as with the sound and equitable principle that no man should be allowed to take advantage of an error which he has induced or invited. From the certificate of the trial judge, which is conclusive, it appears that the accused “ insisted that there was no manslaughter in the case,” and h¿ should not now be heard to argue that the refusal to charge the law relative to that offense was error.