McDaniel v. State

Simmons, C. J.

1. In a trial for murder, threats by the accused against the deceased, though made a considerable period before the homicide, are admissible in evidence for the State as tending to show malice on the part of the accused; and tEe mere ■omission of tEe trial judge to cEarge tEe jury “as to wEat weight they should give to the threats,” or “as to how the jury should regard them 'in their deliberations,” is not cause for a ■ new trial, the more especially when the accused was convicted of voluntary manslaughter only, the verdict thus negativing: any conclusion that the killing was done in malice.

Argued October 6, Decided October 19, 1896.

Indictment for murder. Before Judge Gober. Newton superior count. March, term, 1896.

J. M. Pace, E. F. Echomxls and Y. A. Wright, for plaintiff in error. W. T. K'imsey, soUcitor-general, and M. A... Oamller, contra.

2. Where a father and son were indicted for murder, and upon, the trial of the latter alone he declared in his statement to the ■ jury, and the father also testified as a witness in the son’s behalf, that the mortal blow was inflicted by the father, it is not. cause for a new trial that the court failed to charge that if the-son himself 'did the killing in his own defense, or under the: fear-s of a reasonable man that his own life was in danger, he > was justified in so doing. This is so although the evidence for the State tended to show that the mortal blow was inflicted by the son. Notwithstanding this, he cannot complain 'that the-court failed to submit to the jury a theory which was negatived, not -only by hi-s own statement, hut by the evidence which he-introduced -and asked the jury to accept as the real truth of the-case.

3. There was sufficient evidence to warrant the verdict which the-, jury rendered, and n-o error was committed at the trial.

Judgment affirmed.