Glawson v. State

Gilbert, J.

(After stating the foregoing facts.)

1. There were no reversible errors of law, either in the charge of the court or in any other of the rulings of which there is complaint. Two motions for mistrial were made during the progress of the case, on the ground of unfair and inflammatory argument upon the part of counsel for the prosecution. In one instance the record is not .clear and definite as to what was said by the solicitor-general. Counsel for the accused, as shown by his motion, did not insist upon the accuracy of his complaint, and the court disagreed as to what occurred. In the other instance the court declined to approve the ground as it appears in the motion. In the light of the judge’s note, there was no cause for declaring a mistrial.

Counsel for the plaintiff in error treat the case as if the accused accidentally killed his wife in defending himself from an attack made by a paramour of the wife under circumstances indicating illicit relations. The evidence does not hint at such a state of facts, nor does it appear in the statement of the prisoner.

The law of voluntary manslaughter is not involved in this ease, and it was not error to refuse a request to charge on this subject. Counsel for the plaintiff in. error insist that the law of voluntary manslaughter is involved, and cite as authority for such claim the following cases: Biggs v. State, 29 Ga. 723 (76 Am. D. 630); O'Shields v. State, 125 Ga. 310 (54 S. E. 120); Jackson v. State, 135 Ga. 684 (70 S. E. 245). All of these cases are predicated upon the existence of illicit relations upon the part of the wife of the accused with her paramour.

Requests to charge the jury, based upon the theory that the accused found his wife “at night in company with a man, and the wife then and there disclosed that she was guilty of acts of infidelity, and that the man, in whose company she was, was her paramour, and that she intended to continue her acts of infidelity and lascivious intercourse with the man in whose company she was found,” were not applicable to the facts of this case, and were properly refused. The requests for instructions to the jury, based upon the contention that at the time of the killing the wife of the accused was guilty of illicit relations, “or that she acted in such a manner or used such wórds as to cause him to believe in her infidelity, and he believing it, in a sudden heat of passion supposed to be irresistible, killed his wife,” etc., were properly refused, because not applicable to the facts of the case.

The principles of section 70 of the Penal Code of 1910, in so far as the same were applicable, were given in charge to the jury. Hence an assignment of error based on the refusal of the court to so instruct the jury is without merit.

A request to charge the jury the principle found in section 75 of the Penal Code, that “All other instances which stand upon the same footing of reason and justice as those enumerated shall be justifiable homicide,” was not adjusted to the evidence, and was properly refused. Judgment affirmed.

All the Justices concur.