Harris v. State , 184 Ga. 165 ( 1937 )

Jenkins, Justice.

A ground in a motion for new trial, in a conviction for murder, that “the court erred in not giving in charge to the jury the law of voluntary manslaughter,” is “too vague and indefinite an assignment of error to raise any question for determination by this court.” Smith v. State, 125 Ga. 300 (54 S. E. 124); Wilson v. State, 156 Ga. 42 (118 S. E. 427), and cit.; Burley v. State, 158 Ga. 849 (3) (124 S. E. 532); Harris v. State, 178 Ga. 746 (3) (174 S. E. 240); Parham v. State, 180 Ga. 233 (2) (178 S. E. 648); Bryant v. State, 180 Ga. 238 (178 S. E. 651).

Neither the evidence nor the statement of the accused raised any question save whether the killing was murder or was the result of misfortune or accident. According to the testimony for the accused and according to his statement, the pistol was held by a third person and went off merely by accident when the accused grabbed him and the pistol in trydng to prevent the commission of a threatened felony, by keeping such person from firing after that person had pointed his weapon at another person with a threat to shoot. According to the testimony for the State, the killing was murder committed by the deliberate act of the accused in pulling his own pistol out of his bosom and deliberately firing it at the deceased, remarking thereafter with an oath, “I got him.” Therefore the law of involuntary manslaughter under the Code, § 26-1009, either in the commission of an unlawful act or in the commission of a lawful act without due caution and circumspection, was not involved under either view of the testimony, and the court did not err in failing to charge the jury thereon, especially where there was no request therefor, and where the court gave the defendant the full benefit as to the defense made by him. West v. State, 121 Ga. 364 (49 S. E. 266); Allen v. State, 134 Ga. 380 (67 S. E. 1038); Daniel v. State, 171 Ga. 335 (3, 4), 341 (155 S. E. 478). See also Fair v. State, 171 Ga. 112 (2), 116 (155 S. E. 329).

The evidence fully authorized the verdict.

Judgment affirmed.

All the Justices concur, except Russell, O. J., and Athinson, J., who dissent.