Bradley v. State , 1907 Ga. LEXIS 5 ( 1907 )

Evans, J.

Henry Bradley, Bill Brankley, and three others were jointly charged with the murder of Jim Wright. The two first-named defendants were jointly tried, and were convicted of murder, with a recommendation that they be punished by imprisonment in the penitentiary for life. The case as made by the State showed that Jim Wright, the deceased, on the night previous to the homicide, shot into a crowd of negroes with a gun, and hit several of them. The next morning the defendants on trial, and others, Armed themselves and hunted up Wright. They discovered him in a swamp near the railroad track, and began shooting at him; And afterwards brought him upon the railroad track, wounded and helpless, and shot him again as he lay upon the ground. Wright died from his wounds the next day. The defendants moved for a new trial, and to the refusal of their motion they except.

1. The first ground of their motion is the refusal of the court to continue the case because of the absence of three witnesses. No subpoena had been requested for two of them, and it did not appear that the third had been served-with a subpoena. With respect to two of the absent persons desired as witnesses, there was no-effort to comply with the requirements of the Penal Code, §962. With respect to the third person desired as a witness the defendant deposed that he had been informed that such person would testify to certain facts, but it did not appear with sufficient distinctness that the absent person would so testify. The rule upon such a showing is aptly stated in the first headnote in Thompson v. State, 24 Ga. 297, which we have adopted in this case. See also Macon Ry. Co. v. Anderson, 121 Ga. 669 (5). The judge did notw err in refusing a continuance.

2-3. The principles enunciated in syllabi 2 and 3 are so well settled that further elaboration is ' unnecessary. McWhorter v. State, 118 Ga. 55 (5); Collins v. State, 88 Ga. 347; Dumas v. State, 62 Ga. 58.

4. The principle stated in the fourth headnote was decided in Dixon v. State, 116 Ga. 186 (8); McLeroy v. State, 125 Ga. 240.

5. It was no,t error to instruct the jury as stated in the fifth syllabus to this opinion. Mann v. State, 124 Ga. 760.

6. Counsel for the plaintiff in error requested the court to charge the jury as follows: "If you should find from the evidence in this case that these defendants were assaulted the night'before by the deceased, and they hunted up the deceased, Jim Wright, the next dajq before the blood had time to cool, and before reason had time to resume her sway, and killed Jim Wright in the heat of passion, you would not be authorized to convict these defendants of the crime of murder, but you might convict them of the offense of voluntary manslaughter, if you believe they killed Jim Wright.” The refusal of this request is assigned as error. It would have been erroneous for the court to have instructed the jury as matter of law that a homicide, under the circumstances described in the request, would not be murder, without leaving to the jury to determine what, might be cooling time. Hence the request was properly refused. The court did charge, however, on the subject of voluntary manslaughter, and the defendants do not complain of the correctness of the charge given.

7. The evidence amply authorized the verdict, and no reason appears why the defendants should have another trial.

Judgment affirmed.

Fish, G. Jabsent. The other Justices concur.