Worley v. State , 136 Ga. 231 ( 1911 )

Lumpkin, J.

Leonard Worley was indicted for the murder of E. S. (Emory) Worley. The State introduced a single witness, who testified, in brief as follows: The accused and the person killed were brothers, and the witness was ’ their brother-in-law. The accused came to the house of the 'witness about one o’clock at night, and said that Emory had beaten him with knueks, and that he was going to shoot his brother. The witness saw where the neck of the accused was scratched a little. The witness told him not shoot his brother, but to return home. The accused went to the house of a named person, and the witness called him back. He brought his gun with him, and set it beside the door. “He got down on his knees and could hear a racket over at my mother’s, and he grabbed his gun and shot, and they shot over at the other house.” The witness said, “I see them leaving my mother’s.” The accused said, “he was going to shoot him, if he run up bn him.” The moon was shining brightly. Emory Worley left the house of the father-in-law of the witness, “and came running on him (Leonard), and Leonard shot him.” Both the witness and his wife endeavored to prevent Emory from coming to the place where Leonard was, but he would p'ay no attention to them, and ran “right on him (Leonard).” This witness warned Emory twice to go back, and that if he went up there Leonard would'kill him. The wife of the witness also tried to catch Emory and hold him, but he ran against her; shoved her back, and ran right on. He was within three feet of Leonard when the latter shot him. So far as the witness could see, Emory had no weapon or other thing in his hand, but a pair of metal knueks was found lying three or four inches from his hand. He had a pocket-knife on him. The shot produced instant death. The accused was convicted, with a recommendation to mercy. He moved for a new trial, which was refused, and he excepted:

The evidence in this case is somewhat meager. The State introduced a single witness, who testified to what occurred at the time of the killing. It was inferable from his testimony that there had been a previous difficulty, or some previous transaction leading up to the homicide. Neither the State nor the accused introduced any evidence on that subject, though it might have cast light on the question of malice or the absence of it. The accused made no statement. The evidence of the State’s witness did not show such a clear and unquestionable ease of murder, that certain inaccuracies or errors in the charge could be declared harmless. The charge on the subjects of justifiable homicide, voluntary manslaughter, and reasonable doubt was not free from criticism. The statement quoted in the seventh headnote was not correct. By the Penal Code (1910), § 70, it is declared that “Justifiable homicide is the killing of a human being . . in self-defense, or in defense of habitation, property, or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony on either,” etc. By section 71 it is declared that “A bare fear of any of those offenses, to prevent which the homicide is alleged to have been committed, shall not be sufficient to justify the killing. It must appear that the circumstances were sufficient to excite the fears of a reasonable man, and that the party killing really acted under the influence of those fears, and not in a spirit of revenge.” It will be seen that justifiable homicide is based on the idea of prevention of, or defense against, the commission of certain acts by the person killed. Under the section first quoted the defense is'against one who manifestly intends or endeavors to commit the acts mentioned. In the second of the two sections, circumstances sufficient to excite the fears of a reasonable man, and acting under the influence of such fears, and not in a spirit of revenge, take the place of proof of an actual endeavor on the part of the person slain to commit such acts. Voluntary manslaughter differs from justification. It does not rest on the same basis as the defense against the actual commission of a felony or acting under reasonable fears. It is a criminal homicide, but it is mitigated by the excitement of passion justified by some actual assault, or an attempt by the person killed to commit a serious personal injury on the person killing, or other equivalent circumstances. The killing must be the result of that sudden, violent impulse of passion, supposed to be irresistible, and excluding all idea of malice. The difference between justification arising from acting under the fears of a reasonable man, and mitigation arising from uncontrollable passion, justified by circumstances, is apparent.

We have considered whether the judge, in including the reduction of a homicide from murder to manslaughter in his charge on the subject of reasonable fears, did not rather err in favor of the accused than against him. But when the judge charged that the circumstances must be sufficient to excite the fears of a reasonable man that a serious bodily injury, not amounting to a felony, was about to be inflicted upon the accused, in order to reduce the killing from murder to manslaughter, thus excluding the consideration of other matters which might be sufficient, under the statute, to arouse uncontrollable passion and reduce the killing to manslaughter, it can not be held that this was harmless error. In another part of his charge he again applied the doctrine of reasonable fears to the subject of voluntary manslaughter.

In arguing a criminal case, counsel may read law to the jury, subject to the correction of the court in his charge, in order to apply the facts to the rules of law which they contend are applicable to tlie case. McMath v. State, 55 Ga. 303 (8); Cribb v. State, 118 Ga. 316 (10), (45 S. E. 396), and citations. The main reason for this is, that, to be effective, where a general verdict is to be rendered, an argument must not only deal with what are the facts, but what result should follow from an application of the rules of law to such facts. In order to do this, the lawyer must be able to state to the jury what he believes to be the correct rule of law on the subject. He can not always know in advance just what the judge will charge. That, in a criminal ease, he reads what he thinks is the rule in the presence of the jury is not ordinarily objectionable. He does so subject to the correction of his positions of law by the judge in his charge. Here the judge stated that the jury should get the law from the charge, and his charge was to the effect that the accused was presumed to be innocent until proved guilty beyond a reasonable doubt. This court has held that no legal presumption of guilt arises under the Penal Code (1910), § 1015 (Penal Code (1895), § 989), and that in a criminal case the court should not give that section in charge. Long v. State, 126 Ga. 109 (54 S. E. 906); Mills v. State, 133 Ga. 155 (5), (65 S. E. 368). The failure to introduce witnesses after swearing them might be a legitimate subject of comment by a prosecuting attorney, and authorize him to contend that the jury might draw inferences of fact therefrom prejudicial to the accused; but no legal p-esumption of guilt' would arise from such action. Of course this broad right of argument may be abused, like any other right or privilege. But this court will not presume that conscientious counsel will intentionally irse it as a means of misleading a jury.

The presiding judge charged as set out in the ninth headnote. This charge was evidently taken from the opinion of Chief Justice Simmons in Cumming v. State, 99 Ga. 664 (27 S. E. 177). It seems to follow the statement of that opinion quite' closely, except that the expression is there used, that, “In order to justify a homicide, there must be something more than mere verbal threats,” etc., while here the judge employed the expression that “There must be something more than a mere threat or menace,” etc. In Webster’s Dictionary the word “menace” is defined as follows: “The show of an intention to inflict evil; a threat; indication of probable evil or catastrophe to come; that which menaces; an impending evil.” The word, as thus defined, has a meaning synonymous with threats, and also one signifying something more than mere words. If the evidence authorized such a charge, it would be more apt to let it follow the expression contained in the Gumming case, from which this charge was drawn, or to make it appear in what sense the term “menace” is used. But inasmuch as the judgment is reversed on another ground, we need not determine whether this charge would furnish a cause for reversal.

Except as herein stated, none of the rulings contained in the headnotes require further elaboration. If during the former trial any small inaccuracies not specially mentioned were committed, they were not such as to be likely to occur again.

Judgment reversed.

All the Justices concur.