Cone v. State

1. None of the evidence tended to show justifiable homicide, and the failure of the court to charge the jury on that subject was not erroneous.

2. If the defendant admits the killing and in doing so states reasons for his commission of such act, and if the reasons given are insufficient to show any justification or mitigation, the statement amounts to a confession. Accordingly, where the defendant himself offered in evidence a writing which he contended was a true copy of a statement made by him at a coroner's inquest, and in which it appeared that the defendant admitted the killing and in the same connection stated reasons for his act, none of which showed justification or mitigation, it was not cause for a new trial that the judge in admitting such statement in evidence said, in the presence of the jury, that the statement was admitted "as a part of the defendant's confession," such statement by the judge being as a matter of law a correct characterization of the writing itself, and there being evidence of other statement's amounting to confessions freely and voluntarily made by the accused, and evidence of no statement indicating justification or mitigation.

3. There was no error in refusing to allow counsel for the defendant to interrogate witnesses as to the character of the deceased for violence, where there was nothing to show that the deceased was the assailant and that the defendant was seeking to defend himself.

4. The judge charged the jury as follows: "Malice is implied from a deliberate act, however sudden. In this connection I charge you this: A man who can voluntarily shoot or stab is capable of entertaining and acting from malice, unless he can plead some infirmity besides drunkenness. To be too drunk to attempt to kill, he must be too drunk to cut or stab. Intent to kill is only necessary to amount to legal malice." The exceptions to this charge do not bring in question the correctness of the first sentence, and in view of the charge as a whole none of the exceptions taken thereto shows substantial error.

5. The judge also gave the following charge, of which complaint is made: "Malice is a state of the mind, and intention to kill under such circumstances as the law does not justify nor in any degree excuse if the killing occurs as intended. You will see from this that there must be a deliberate purpose to take human life; the mind must be made up to act; it must have arrived at the conclusion to kill; but it is not necessary that the deliberate intention to take life should exist for any particular length of time before the killing. If it enters the mind of the slayer the moment before he inflicts the mortal wound, that is sufficient. If it is deliberate, intentional, at the time he makes up his mind to kill; and if it exists only that length of time, it is sufficient in law. A man may form the intention to kill, do the killing instantly, and regret the deed as soon as done. Legal malice is not necessarily ill-will or hatred; it is an unlawful intention to kill, without justification or excuse." Held: Considering the entire charge, this excerpt was nor erroneous for the reasons that it (a) contained conflicting definitions of malice, (b) excluded all idea of passion or mitigation, and (c) was argumentative. Nor was it erroneous for other reason assigned.

6. The instructions on the subjects of drunkenness and insanity of which the defendant complained were not confusing or argumentative, as contended. The court did not err in refusing a new trial.

No. 13931. JANUARY 22, 1942. REHEARING DENIED FEBRUARY 13, 1942. Howard Cone was indicted for murder in the killing of Roy Tucker by cutting and stabbing him with a knife, on June 22, 1941; and was convicted of that offense, without a recommendation. His motion for new trial was overruled, and he excepted. Only the special grounds of the motion are insisted on in this court.

According to the evidence, the defendant and the deceased lived in the same community in Thomas County, and were seen together during the afternoon of the date alleged in the indictment, once at Tucker's home, and at another time in a road near by.

J. G. Hough, a deputy sheriff, testified that on receiving information from D. B. Quick, who lived in the same community, that Roy Tucker had been killed, the witness went to the home of Tucker and there found his dead body lying on a bed. According to the testimony of this witness and of others, the head of Tucker had been entirely severed from his body, and his body had been split open in front all the way from neck to crotch. The defendant had told Quick that he had killed Roy Tucker, and that he wanted him "to get the law." As to the circumstances of this conversation Quick testified: "I had been to the Dillon Presbyterian Church that night and was on my way back home. . . I saw Howard Cone in the road. . . He was standing in the road, and I had to stop. He would not move out of the way. He motioned to me after I stopped, and I turned around and saw there was something the matter. He was just as bloody as could be. . . I asked him what was the matter, and he said he was in trouble, serious trouble, and he wanted me to get the law. . . He said he had killed a fellow. I asked him whom did he kill, and he said, ``I don't want to tell anybody.' I said, ``I would like for you to tell me.' He said, ``I will tell you, but I am not going to tell anybody else. I killed Roy Tucker dead as hell.' I told him to go ahead home, that I would go and get the sheriff, which I did." The witness further testified that this conversation occurred about two hundred yards from Roy Tucker's home.

Other testimony of J. G. Hough was as follows: "Upon discovering Roy Tucker's body I closed the house and went to where the defendant, Howard Cone, was. . . I found the defendant at home and arrested him there. He was just as bloody as could be. He looked like he had been butchering a hog or something. I searched him at that time, and found a big knife on his person. It was bloody, too. . . He said that he had killed Roy Tucker. . . and that was the knife he used. . . I was present the next day at the coroner's inquest when the defendant, Howard Cone, made a statement. He said, ``Well, it is done done, it can't be undone now.'" The witness further testified that at the time of the arrest the defendant stated that "they were fighting in the kitchen, and they got over that fight and settled that, and went in and laid down on the bed, and said they got to arguing again, and he took his knife out and cut his throat first and then cut his head off. That is the statement he made to me when I went out to arrest him. I testified to that at the inquest. At the inquest he said, ``It is done done now.' I don't know if that is all I heard him say at the inquest, but I heard him say that. I did not hear him say a word about having a fight with Roy Tucker after they went to the negro house. We asked him if Roy Tucker was asleep, and he said no. We asked him if Roy had a knife, and he said no. . . I also examined the kitchen of the Tucker house. The kitchen and dining-room are parts of the same room. As already stated, it was a two-room house. I did not notice anything in the kitchen, either around the stove or the dining-room or anywhere in the kitchen, that would indicate any disturbance or any trouble in there. I did not pay any particular attention to it, but nothing looked like anybody had had a fight in there. There was nothing in the bedroom that would indicate that there had been a fight in there, other than what I have already told." In another portion of his testimony the same witness stated that at the time he arrested the defendant he asked the defendant "why he severed the head and mutilated the body. . . He said he did not know." Also, that the defendant appeared to have been drinking.

C. M. Dixon, sheriff, testified that a few days after the defendant was incarcerated he stated that he and Tucker purchased and consumed several quarts of wine during the afternoon. Also, "He then told me about the killing. He said he did not have a thing against Roy Tucker. He said they had been drinking, and that he had cut and killed him. . . Howard Cone made a statement before the coroner's jury. He did not say, ``It is done done now, and I can't help it.' When they got through with the witness he looked like he wanted to say something, and when they got through with the witness I asked him if he wanted to make a statement, he got up and said, ``It is done done.' I asked him if Tucker had a knife, and he said he did not. I asked him if he was asleep, and he said ``No.' I did not say they had a fight at a negro house. There was not anything said or any statement made about a negro house."

Being handed the official report of the coroner's inquest, the witness, by request of defendant's counsel, read from it the following: "Statement of Howard Cone: ``It is done now, and I can't help it. We had a fight after we went to the negro house. We were fighting, and I cut his throat first. I don't remember who started the scrap. He was not asleep on the bed. We were fighting; we started in the kitchen. He did not have a knife when I killed him, so far as I know.'" Continuing, the witness testified: "He did not say they had a fight at a negro house, there was not anything said about a negro house, that I remember."

E. Carlton testified, that about the middle of the afternoon, the witness saw Roy Tucker near the latter's home; that "he and Johnny Odum were out there talking and Roy Tucker was drunk. He was sitting there at the gap that led into the road, talking. He did not have anything in his hands at that time, but he had an ax-handle there by him, and said he had that ax-handle there to kill Howard Cone with. . . I did not see Howard Cone around there."

Johnny Odum testified: "I know Mr. E. Carlton, and knew Roy Tucker in his lifetime. I saw Mr. Carlton and Roy Tucker at the same time on Sunday afternoon June 22nd, of this year, in front of Roy Tucker's house, right at the gate. I also saw an ax-handle there, and heard Roy Tucker say that he had been over in the woods, and that he and Howard Cone had a fight, and he tore his shirt off of him, and that if Howard Cone came around to his house he was going to beat hell out of him. He said that he and Howard Cone had been out in the woods, and that they had had a fight, and that Howard tore his shirt off of him, and he had an ax-handle, and said if Howard Cone came around there he was going to beat hell out of him. . . I did not see Roy Tucker leave that house. I went on home and found out later what had happened. It was about six o'clock the next morning when I heard that Roy Tucker had been killed. I did not see Howard Cone around the house at that time. I did not see him anywhere around, and went on about my business. The conversation I have told about occurred at Tucker's own house. I left Mr. Carlton there. . . I saw Howard Cone at Roy Tucker's house about 5:30 the afternoon of June 22d this year. He was at Roy Tucker's house. I was back down there that afternoon about 5:30, and Howard Cone was there with Roy at that time. They were laughing and joking that afternoon, both of them were, and there seemed to be no animosity. I do not know where Mrs. Roy Tucker was at that time, but she was not at home, nobody but we [the?] two. Roy Tucker and Howard Cone and Roy's brother and I were there. Roy's brother and I went down there together and left together. His brother was William Tucker. . . I said that William Tucker and I went down there about 5:30 that afternoon and found Roy Tucker and Howard Cone there in the room, inside the house, laughing, talking, and joking. They walked out on the front porch, and both of them were laughing and talking when we were there. I left them in a perfectly good humor."

William Tucker testified: "Roy Tucker, the deceased, is my brother. I went to his home on the afternoon of June 22nd, about 5 o'clock. I found my brother Roy and Howard Cone there when I got there. They were sitting on the edge of the bed in the bedroom. They were apparently in a good humor and friendly at that time. They were laughing and talking. I remained there for five or ten minutes. I never saw my brother, Roy Tucker, after that."

I. P. Lawhorn testified: "I did go to town after dark that night [June 22d]. I came to town after the law, to go out there and straighten those boys out; that is Howard Cone and Roy Tucker. I saw them passing by my house, and they were quarreling. That was about 7:30 in the afternoon. . . I saw them walking by my house, and they both appeared to be drinking. They were rather loud and boisterous, and I came in and reported it to the officers. I did not want to take out a warrant for them. I told the officers at that time that Roy Tucker had already gone back to his home. When I came for the officers Roy was in his house, so far as I knew. I had not had any trouble with them, but they were talking boisterously for Sunday afternoon, and that was the end of it." The witness further testified that in talking with the officers, when a warrant was mentioned, he told them not to swear out a warrant that night, that he "would talk to Roy and this boy the next day."

Rudolph Lawhorn testified: "I am the son of I. P. Lawhorn. I remember the night that my daddy came to town here to see the sheriff, because Cone and Tucker passed by our house talking loud and rough. I stayed at home with my mother while he was gone. We were all scared. We were all listening to see what was going on over at Tucker's house. We were listening carefully. I heard a shotgun, and after that a chair fell. Then it got quiet. It sounded like the house was tearing down, and then a chair fell, and then everything became quiet. . . Roy Tucker and Howard Cone passed my house, and later on I heard a noise around there. As to what happened there [at Tucker's home, 100 yards away], I don't know anything about that. . . I was particularly listening to see if I could hear anything over at Roy Tucker's house. We heard some mumbling voices, but could not hear what was being said. We heard voices in the direction of Roy Tucker's house."

The defendant's counsel introduced several witnesses for the purpose of showing insanity of the defendant, including delusional insanity. The testimony of some, but not all, of these witnesses tended to support such defense. As to this issue, rebuttal testimony was offered by the State. The defendant made no statement to the jury.

The first special ground of the motion for new trial complained of the failure of the judge to charge the jury on voluntary manslaughter and justifiable homicide. The second ground assigned error on the statement made by the judge in admitting evidence offered by the defendant, consisting of what purported to be a copy of his statement made at the coroner's inquest, which had been read to the jury by the witness Dixon, as above indicated. Ground 3 complained of the refusal of the court to permit the defendant's attorney to interrogate witnesses as to the reputation and character of the deceased for violence. Grounds 4, 5, and 6 assigned error on excerpts from the charge of the court. The grounds are more fully stated in the opinion. 1. There is no insistence on the general grounds of the motion for new trial. The amendment to the motion contained six additional grounds, which are insisted on, and will be referred to herein according to the numbering in the amendment.

In ground 1 it is contended that the judge erred in failing to charge the jury on justifiable homicide and voluntary manslaughter. Attached to this ground is a brief of a part of the evidence, in virtue of which it is contended a charge on voluntary manslaughter as related to mutual combat should in any event have been given. There is no merit in this ground. None of the evidence tended to show justifiable homicide, and therefore the failure of the court to charge the jury on that subject was not erroneous.Benjamin v. State, 150 Ga. 78 (2) (102 S.E. 427); Turner v. State, 190 Ga. 316 (9 S.E.2d 270).

As to voluntary manslaughter, the only question for determination is whether a charge on this subject should have been given on the theory that the killing was the result of a mutual combat. The evidence pertinent to this contention may be summarized as follows: About the middle of the afternoon the deceased was seen at or near his home, when he was "drunk" and had an ax-handle, with which he stated he was going to kill Howard Cone, or "beat hell out of him," signifying as a reason that he and the defendant had had a fight, and that the defendant "tore his shirt off of him." The defendant was not present at this time. Later during the afternoon the deceased and the defendant were seen together at the home of the former, "inside the house, laughing, talking, and joking," apparently in good humor and friendly. At a still later hour, about 7:30 in the afternoon, they passed the house of a neighbor, and were quarreling. At this time they appeared to be drinking, and were "rather loud and boisterous," "talking loud and rough." They returned then to the home of the deceased, after which there was a noise in the house as the report of "a shotgun, and after that a chair fell. . . It sounded like the house was tearing down." Some "mumbling voices" were heard, but the witness who heard them could not tell "what was being said." At the time of his arrest the defendant stated to the arresting officer that "they were fighting in the kitchen, and got over that fight and settled that, and went in and laid down on the bed, and said they got to arguing again, and he took his knife and cut his throat first and then cut his head off." It appears that at the coroner's inquest he made the following statement: "It is done done now, and I can't help it. We had a fight after we went to the negro house. We were fighting, and I cut his throat first. I don't remember who started the scrap. He was not asleep on the bed. We were fighting, we started in the kitchen. He did not have a knife when I killed him, so far as I know." On the night of the homicide and before his arrest, the defendant was seen by an acquaintance, in the road about two hundred yards from the home of the deceased. The person who saw him at this time, testified that he stated that he was in serious trouble and wanted witness "to get the law," that he had "killed Roy Tucker."

The foregoing evidence did not tend to show a mutual combat, and hence would not have authorized a charge on voluntary manslaughter as related to such theory. In order to reduce a homicide from murder to voluntary manslaughter, on the theory of mutual combat, it should affirmatively appear that at the time of the homicide both parties were in position and manifested an intention to fight. Cornelious v. State, 193 Ga. 25 (17 S.E.2d 156, 158). The unlawful killing of one who has given the slayer no provocation other than the use of words, threats, menaces, or contemptuous gestures can not be graded as voluntary manslaughter under the doctrine of mutual combat. Code, § 26-1007; Bird v. State, 128 Ga. 253 (57 S.E. 320). While it appears that the deceased, a few hours before he was killed, had an ax-handle with which, as he stated, he intended to kill or beat the defendant, there was no evidence that this threat was ever communicated to the defendant, or that the deceased made any effort whatever to carry it into effect. He stated at the time that he and the defendant had had a fight, and that the defendant had torn his shirt off; but the circumstances of such fight were never revealed by any one. Moreover, the defendant and the deceased were later seen together "laughing, talking, and joking," apparently in good humor and friendly. At this time, therefore, there was nothing to indicate "hot blood" arising from mutual combat. Brown v. State, 144 Ga. 216 (87 S.E. 4). Later, however, they were boisterous and quarreling; and according to extrajudicial statements of the defendant they were fighting or had been fighting at the time of the homicide. But these additional facts, considered either by themselves or in connection with the other evidence, do not show mutual combat within the meaning of the law as related to voluntary manslaughter. On proof of a killing without evidence of justification or mitigation, the burden is shifted to the defendant to establish some defense. Futch v. State, 90 Ga. 472 (8) (15 S.E. 102); Mann v. State, 124 Ga. 760 (53 S.E. 324, 4 L.R.A. (N.S.) 934); Warren v. State, 140 Ga. 227 (78 S.E. 836). The mere fact that there was a previous quarrel and fight did not, without more, establish mutual intent to fight. Tate v. State, 46 Ga. 148; Ison v. State,154 Ga. 408 (114 S.E. 351); Harris v. State, 184 Ga. 382, 391 (191 S.E. 439). For aught that appears, everything that was said or done by the deceased might have been wholly defensive, except his threat, which so far as shown he at no time attempted to execute. Under the evidence, even if the fight had occurred in a public place and if Tucker had lived, he could not have been convicted of an affray; and unless the fight in such case would have amounted to an affray, there was no mutual combat. Code, § 26-5303; Tate v.State, 46 Ga. 148; Gresham v. Equitable Accident InsuranceCo., 87 Ga. 497, 503 (13 S.E. 752, 27 Am. St. R. 263).

Upon a fair consideration of the evidence as a whole, it does not appear, directly or by inference, that the deceased willingly engaged in any combat with the defendant. Therefore the judge did not err in failing to charge on voluntary manslaughter as related to mutual combat. Griggs v. State, 148 Ga. 211 (4) (96 S.E. 262); Brannon v. State, 188 Ga. 15 (2 S.E.2d 654);Mims v. State, 188 Ga. 702 (7) (4 S.E.2d 831); Roberts v. State, 189 Ga. 36 (3) (5 S.E.2d 340).

2. It appears from the record that the defendant made the following statement at the coroner's inquest: "It is done done now, and I can't help it. We had a fight after we went to the negro house. We were fighting, and I cut his throat first. I don't remember who started the scrap. He was not asleep on the bed. We were fighting; we started in the kitchen. He did not have a knife when I killed him, so far as I know." The statement was reduced to writing by some one. At the request of the defendant's attorney, it was read in evidence by C. M. Dixon, sheriff, who testified as a witness for the State. Thereafter the defendant's counsel offered the writing itself in evidence. The court at first sustained an objection by the solicitor-general, on the ground that it was "a self-serving declaration," but later ruled and stated: "The coroner's inquest proceedings as to Cone's statement are admitted in evidence as part of the defendant's confession." In ground 2 it is contended by movant that said ruling and language were erroneous, for the following reasons: (a) The statement of the accused, being extrajudicial in nature, should have been admitted in evidence as a whole, and should have been accepted or rejected by the jury as a whole. (b) Two witnesses for the State, the sheriff and the deputy sheriff, having testified that from having heard the spoken words of the defendant in his statement at the coroner's inquest they had no recollection of any reference therein to a fight after a visit to a negro house, the said documentary record of the contents of said statement should have been admitted in evidence for whatever legitimate purpose it might have served, especially for the purpose of rebutting the testimony of the State's witnesses, and for the further purpose of showing the entire statement, leaving the jury, under proper instructions from the court, to determine all material facts in point. (c) The jury should have been permitted to consider the documentary evidence of the statement, as well as the oral testimony regarding the same, and particularly those parts of the evidence which the movant insisted tended to show mutual combat, for the purpose of determining whether the alleged homicide was murder or voluntary manslaughter. (d) The language of the court admitting such written statement in evidence "as a part of the defendant's confession" was an intimation by the court that a confession had been proved. (e) By restricting the jury's right to consider said document only as a part of the defendant's confession, the court invaded the province of the jury to determine the weight and credit to be given by them to the evidence then and there before them.

There is no merit in any of these contentions. The statement of the judge was, as a matter of law, a correct characterization of the defendant's statement at the coroner's inquest; that is to say, the statement of the defendant was in effect a confession, since it admitted the killing and did not show any circumstances of justification or mitigation, and, as shown in authorities cited above on mutual combat, the mere statement that he and the deceased had been fighting did not show that the deceased entered willingly into the fight or did so otherwise than as a matter of defense. There was evidence of still other statements freely and voluntarily made by the defendant, amounting to confessions, and evidence of no statement indicating justification or mitigation. If the defendant admits the killing and in the same connection states reasons moving him to commit the homicide, and the reasons given are insufficient to show any justification or mitigation, the statement amounts to a confession. Jones v. State,130 Ga. 274 (4) (60 S.E. 740); Minter v. State, 158 Ga. 127,132 (123 S.E. 23); Daniel v. State, 187 Ga. 411 (4), 413 (1 S.E.2d 6). In the circumstances the statement by the judge in admitting the document was not cause for a new trial. Taylor v. State,135 Ga. 622 (8) (70 S.E. 237); McCloud v. State, 166 Ga. 536 (3) (143 S.E. 558); Lyles v. State, 130 Ga. 294 (6) (60 S.E. 578). In this view, it is unnecessary to determine whether, if the defendant felt aggrieved by the statement of the judge, he should have objected to it at the time it was made, without waiting to complain for the first time in a motion for new trial. Compare Moore v. McAfee, 151 Ga. 270 (2) (106 S.E. 274);Armstrong v. State, 181 Ga. 538 (2) (183 S.E. 67);Mickle v. Moore, 193 Ga. 150 (17 S.E.2d 728); Parker v. Wellons, 43 Ga. App. 721, 727 (160 S.E. 109).

3. In ground 3 it is stated: "During the trial and while witnesses were being examined and cross-examined by defendant's counsel, questions were asked for the purpose of showing that the reputation and character of the deceased for violence was bad. Upon objection of the solicitor-general, on the ground that the deceased was not shown to have made the assault, and no foundation had been laid for such testimony, the court sustained the objection and excluded the evidence." It appeared that counsel afterward moved the court for permission "to introduce witnesses for the purpose of showing that the reputation and character of the deceased for violence was bad." The court again ruled that such evidence was inadmissible; and each of these rulings was assigned as error.

It is contended by counsel for the State that this ground of the motion is fatally defective, because it does not show that any pertinent question was asked, or that any particular testimony was excluded, so as to authorize a complaint that the right of cross-examination was infringed, or that any evidence was illegally withheld. See Smith v. Smith, 133 Ga. 170 (65 S.E. 414); Barron v. Barron, 185 Ga. 346 (194 S.E. 905);Petty v. Bryant, 188 Ga. 102 (2 S.E.2d 910). However this may be, it is true, as further insisted by the State, that evidence as to the character of the deceased for violence would not have been admissible, since there was no evidence to show that the deceased was the assailant and that the defendant was seeking to defend himself. Doyal v. State, 70 Ga. 134 (5 a); Drake v. State, 75 Ga. 413 (3), 415; Gardner v.State, 90 Ga. 310 (17 S.E. 86, 35 Am. St. R. 202); Barnett v. State, 136 Ga. 65 (5) (70 S.E. 868); Futch v. State,137 Ga. 75 (5) (72 S.E. 911); Crawley v. State, 137 Ga. 777 (2) (74 S.E. 537); Brooks v. State, 150 Ga. 732 (3) (105 S.E. 362); Johnson v. State, 192 Ga. 571 (15 S.E.2d 786). This ruling accords with the decisions in Monroe v.State, 5 Ga. 85 (4), and Pound v. State, 43 Ga. 88,128, cited for the plaintiff in error.

4. Grounds 4 and 5 assign error on different excerpts from the charge of the court. In order that these grounds may be properly understood and considered, it would seem that the excerpts complained of should be viewed together and in the light of their context, as may be done from the extract next quoted. The part of the following quotation which is enclosed in Parentheses was assigned as error in ground 5, while that enclosed in brackets was complained of in ground 4:

"I now define to you the law of murder: Murder is the unlawful killing of a human being, in the peace of the State, by a person of sound memory and discretion, with malice aforethought, either express or implied. In its commission is involved a killing not authorized by law, and such killing must have been by a person of sound memory and discretion. The law presumes every person to be of sound mind, until the contrary appears. To constitute this offense, the killing must have been done with malice aforethought.

"(Malice is a state of the mind, and intention to kill under such circumstances as the law does not justify nor in any degree excuse if the killing occurs as intended. You will see from this that there must be a deliberate purpose to take human life; the mind must be made up to act; it must have arrived at the conclusion to kill; but it is not necessary that the deliberate intention to take life should exist for any particular length of time before the killing. If it enters the mind of the slayer the moment before he inflicts the mortal wound, that is sufficient. If it is deliberate, intentional, at the time he makes up his mind to kill; if it exists only that length of time, it is sufficient in law. A man may form the intention to kill, do the killing instantly, and regret the deed as soon as done. Legal malice is not necessarily ill-will or hatred; it is an unlawful intention to kill, without justification or excuse.)

"Malice may be either express or implied. It is express when it is manifested by external circumstances capable of proof. When the deliberate purpose to take life exists, and when this is shown by external circumstances capable of proof, the jury may find express malice. Preparation for the act of killing, lying in wait, threats to kill, and matters of that character, may be some of the evidences tending to show express malice.

"Malice may also exist although there may be no evidence of express malice; it is then implied. Malice shall be implied where no considerable provocation appears, and where all the circumstances of the killing show an abandoned and malignant heart. An abandoned and malignant heart, in the sense of the law, is commonly held to be evinced by a weapon or other appliance likely to produce death, and by brutal and bloodthirsty use of such instrumentality.

"[Malice is implied from a deliberate act, however sudden. In this connection I charge you this: A man who can voluntarily shoot or stab is capable of entertaining and acting from malice, unless he can plead some infirmity besides drunkenness. To be too drunk to attempt to kill, he must be too drunk to cut or stab. Intent to kill is only necessary to amount to legal malice.] The law provides that drunkenness shall not be an excuse for any crime or misdemeanor, unless such drunkenness was involuntary, — that is, caused by the fraud or contrivance of another person, against the will of the person on trial, and then the person causing such drunkenness and wrongful act shall himself be considered a principal and suffer the consequences of the crime or misdemeanor he thus causes to be committed if he is shown to have been possessed of sound reason and discretion."

In ground 4 the portion of the foregoing charge which is shown in brackets was assigned as error on the following grounds: "(a) The concluding sentence that ``Intent to kill is only necessary to amount to legal malice,' makes every intentional killing malicious even if done in self-defense or under circumstances which the law denounces only as voluntary manslaughter. It excludes all matter of mitigation from the consideration of the jury, and, in effect, excludes from their consideration that part of the evidence indicated by Exhibit A hereto annexed as a part of this amendment [including the evidence substantially stated in the first division of this opinion]. Considered in connection with other parts of the charge on malice, it was confusing to the jury. (b) The statements therein with reference to ability to ``shoot or stab' and ``attempt to kill' are argumentative and are incorrect statements of law; and the connected words, ``unless he can plead some infirmity besides drunkenness,' amounts to an intimation by the court to the jury that the accused was pleading drunkenness as a defense, which he was not doing, and tended to confuse the jury. (c) Said concluding sentence also excluded deliberation as the essence of malice."

As will be seen from these exceptions, there is no attack upon the first sentence of the excerpt, stating that "Malice is implied from a deliberate act, however sudden." Accordingly, no question as to whether this statement should have used the word "killing" for "act" and should have included the word "unlawful" after "deliberate" or was otherwise objectionable, will be determined. Compare Braswell v. State, 42 Ga. 609 (3), 613;Goolsby v. State, 147 Ga. 169 (93 S.E. 88). The remainder of the excerpt was evidently given in reference to drunkenness, and must have been so understood by the jury. It is almost a reproduction of the language of this court in Marshall v.State, 59 Ga. 154, 156, where it was said: "A man who can voluntarily shoot is capable of malice, unless he can plead some infirmity besides drunkenness. To be too drunk to form the intent to kill, he must be too drunk to form the intent to shoot. And intent to kill is the only necessary ingredient of legal malice, where neither justification nor adequate provocation is made to appear." While the last sentence of the excerpt, "Intent to kill is only necessary to amount to legal malice," may not have been as full and clear as the similar statement in the Marshall case, yet in view of the entire charge, it was not cause for a new trial on the theory, as contended, that it excluded deliberation as the essence of malice, and made every killing malicious, even if done in self-defense or in circumstances such as would reduce the homicide from murder to voluntary manslaughter.

The charge was not argumentative, as contended, nor under the facts of the record did it constitute reversible error because of the words "unless he can plead some other infirmity besides drunkenness." It was insisted by the movant that this latter charge was erroneous as containing an intimation that he had pleaded drunkenness as a defense when he had not done so. The evidence was sufficient to show that the defendant was drunk on the occasion in question. He made no statement at the trial. The charge was in the abstract, and was manifestly intended as an instruction that voluntary drunkenness is no excuse for crime. In the circumstances the exception is without substantial merit. Code, § 26-403; Dickens v. State, 137 Ga. 523 (5), 529 (73 S.E. 826); Daniel v. State, 171 Ga. 335 (2), 340 (155 S.E. 478); Haden v. State, 176 Ga. 304 (9), 310 (168 S.E. 272);Yaughan v. State, 26 Ga. App. 639 (107 S.E. 389).

5. To avoid repetition, reference is here made to that portion of the charge which is enclosed in parentheses in the rather lengthy quotation contained in the preceding division. The excerpt which may be thus identified was assigned as error in ground 5 of the motion, the exceptions being as follows: (a) The definitions of malice contained in the first and last sentences thereof were contradictory and confusing: (b) the statement in the last sentence, defining malice as the unlawful intention to kill without justification or excuse, was incorrect and prejudicial, for the reasons (1) it excluded all idea of passion such as would reduce the offense to voluntary manslaughter; (2) it expressly excluded from the jury mitigating circumstances inferable from that part of the evidence on which the defendant relied as indicating voluntary manslaughter as related to mutual combat, the evidence being identified; (3) it eliminated the effect of the extra-judicial statements shown to have been made by the accused, and (4) the court thereby invaded the province of the jury to determine from all the evidence whether the killing was murder or voluntary manslaughter.

We are unable to perceive any substantial conflict in the definitions of malice in this excerpt; certainly there was nomaterial conflict as related concretely to the evidence adduced. As shown in the preceding division, the judge defined murder and malice, express and implied, substantially in the language of the Code, §§ 26-1003; 26-1004. In Leonard v.State, 133 Ga. 435 (66 S.E. 251), it was held that after the court defined murder and express and implied malice in the language of the Code, it furnished no ground for reversal to add, "it [meaning malice] is an unlawful intention to kill without justification or mitigation." It is argued in the brief that the charge here under consideration eliminated all idea of deliberation or premeditation; but when it is considered as a whole it is not subject to this criticism. Immediately after the first definition of malice as contained in the excerpt, the judge told the jury, "You will see from this that there must be a deliberate purpose to take human life; the mind must be made up to act, it must have arrived at the conclusion to kill." InGoosby v. State, 153 Ga. 496 (4) (112 S.E. 467), a charge similar to that here under review was held substantially correct. To the same effect, see DuPre v. State, 153 Ga. 798 (3) (113 S.E. 428).

It is further contended, however, that since the charge did not refer to mitigation, it excluded the theory of voluntary manslaughter as related to mutual combat. There is no merit in this contention. In Mann v. State, 124 Ga. 760 (supra), a charge in almost the identical language was assigned as error as excluding mitigation and thereby eliminating the theory of voluntary manslaughter. It was held that the words "nor to any degree excuse" should be held by contrast to refer to mitigation; and that the charge as given conveyed the meaning that malice is the intent to take human life in cases where the law neither mitigates nor justifies. The decision in the Mann case has been followed in several later cases. Worley v. State, 136 Ga. 231 (2) (71 S.E. 153); Smith v. State, 140 Ga. 791 (2) (79 S.E. 1127); Wilson v. State, 152 Ga. 337 (2), 341 (110 S.E. 8); Mincey v. State, 187 Ga. 281 (2) (200 S.E. 144).

Of the cases relied on by counsel for the plaintiff in error in this connection, although all have been carefully studied, only Curry v. State, 150 Ga. 736 (105 S.E. 361), andVincent v. State, 153 Ga. 278 (6) (112 S.E. 120), would seem to require specific mention. In the Curry case, where three grades of homicide, murder, voluntary manslaughter, and justifiable homicide, were involved, it was held that the charge, "malice in law is the unlawful intent to take human life; that is all it is," was erroneous and required a new trial, in that it prevented the jury from finding the defendant guilty of the lesser offense of voluntary manslaughter, since in that offense the killing is both unlawful and intentional, and yet not malicious, within the meaning of the latter term as applied to the crime of murder. In the Vincent case, a charge to the effect that "legal malice is the intent unlawfully to take away the life of a human being" was held inaccurate and erroneous, as it excluded deliberation or premeditation, which is the gist of murder. In neither of these cases was there any such full and complete definition of malice as was given in the case now under consideration. The charge here, when considered as a whole, clearly embraced the element of deliberation, and did not exclude the idea of mitigation. Moreover, as shown in the first division, there was no basis for a charge on mitigation. The excerpt complained of was not erroneous for any reason assigned.

What has been stated in this division should be considered with the discussion contained in division 4, as the grounds of the motion dealt with in the two divisions are closely related.

6. In ground 6 the movant complained of instructions on insanity and drunkenness, contending that they were so blended as to make the charge as a whole confusing on these subjects; that they so contrasted the opposing contentions of counsel that they in effect made the charge as a whole an argument in favor of the State's contention that the defendant was drunk but not insane at the time of the homicide, and impaired if they did not utterly destroy the defense of insanity; and that, especially in view of a designated excerpt, the several charges when considered together authorized the jury to return a verdict of guilty if they found that the defendant committed the homicide while in a state of temporary drunkenness, regardless of what his mental condition might otherwise have been. When the excerpts complained of are considered together and in the light of other instructions, especially those later given, in which the judge distinguished between temporary voluntary drunkenness, and permanent mental impairment amounting to insanity, though brought about by the use of intoxicants, it is clearly apparent that the exceptions taken are without merit.

Upon a careful examination of the entire record we are convinced that no reversible error was committed. The judgment refusing a new trial must be Affirmed. All the Justices concur.