Porter v. State

Bell, Justice.

1. The defendant sought, by his statement alone, to put in issue the character of the deceased for violence; but since he referred only to specific acts, the court, for this reason if not for others, properly refused to give in charge to the jury the law applicable to such character. Doyal v. State, 70 Ga. 134 (5) ; Andrews v. State, 118 Ga. 1 (2) (43 S. E. 852) ; Warrick v. State, 125 Ga. 133 (6) (53 S. E. 1027).

2. The requested charges on the good character of the accused, and on the right of the jury to prevent the death penalty by a recommendation to mercy, were argumentative. Johnson v. State, 148 Ga. 546 (4) (97 S. E. 515). Language taken from a decision by this court may be improper as an instruction to the jury. Atlanta & West Point Railroad Co. v. Hudson, 123 Ga. 108 (51 S. E. 29) ; Savannah, Florida & Western Railway Co. v. Evans, 115 Ga. 315 (2) (41 S. E. 631, 90 Am. St. R. 116). Russell, C. J., and Atkinson, J., dissent.

3. The requested charge on the relative size and strength of the defendant and the deceased was not supported by any evidence; and being predicated partly upon the theory of such support, the court did not err in refusing the request, and this is true even assuming that the charge would other-_ wise have been applicable. Nutzel v. State, 60 Ga. 265 (3) ; Alexander v. State, 118 Ga. 26 (3) (44 S. E. 851). Russell, C. J., and Hutcheson, J., dissent.

4. The defense allowed by the Renal Code of 1910; § 72, was presented by the statement of the defendant; and the court erred in refusing the defendant’s request to give in charge to the jury the provisions of this section, the general charge containing no sufficient, if any, reference to such defense. Hayden v. State, 69 Ga. 731 (3) ; Freeney v. State, 129 Ga. 759 (4) (59 S. E. 788) ; Rossi v. State, 7 Ga. App. 732 (3) (68 S. E. 56); Howell v. State, 47 Ga. App. 405 (170 S. E. 692). Beck, P. J., dissents.

5. There is no merit in any ground of the motion for a new trial other than as dealt with above.

No. 10413. January 19, 1935. L. E. Heath and Oasey Thigpen, for plaintiff in error. M. J. Yeomans, attorney-general, Marvin L. Gross, solicitor-general, D. M. Parker, and J. D. Godfrey, contra.

Judgment reversed.

All the Justices concur, except Beck, P. J., who dissents.