1. An indictment charged Clifford Harris and two others jointly with murder, in that they did with malice aforethought "kill and murder" Charlie Huff by "shooting the said Charlie Huff with a certain pistol and thereby inflicting upon the said Charlie Huff a mortal wound, contrary to the laws of said State, the good order, peace, and dignity thereof." Held:
(a) The words "kill and murder" considered with the context sufficiently charge death of the victim resulting from the would inflicted by shot of the pistol. Consequently it was not good ground of demurrer that there was failure to allege that Charlie Huff died as result of the wound. Johnson v. State, 186 Ga. 324 (197 S.E. 786); Reed v. State, 148 Ga. 18 (2) (95 S.E. 692); Green v. State, 172 Ga. 635 (2) (158 S.E. 285). Nothing to the contrary was held in Daniel v. State, 126 Ga. 541, 542 (55 S.E. 472), Walker v. State, 116 Ga. 537 (5) (42 S.E. 787, 67 L.R.A. 426), and Baynes v. State, 135 Ga. 219 (69 S.E. 170), cited in the briefs for the plaintiff in error.
(b) Neither was it good ground of demurrer, that, there being several defendants and only one pistol and no charge of conspiracy, it is not alleged which of the defendants did the shooting; or whether defendant Clifford Harris committed the crime in connection with the other defendants in a joint enterprise, or with having committed the crime individually in a separate enterprise. Brannon v. State, 140 Ga. 787 (80 S.E. 7). See Jones v. State, 130 Ga. 274 (6) (60 S.E. 740).
(c) The court did not err in overruling the demurrer to the indictment.
2. In article 1, section 1, paragraph 5, of the constitution (Code, § 2-105) it is declared: "Every person charged with an offense against the laws of this State . . shall be furnished, on demand, with a copy of the accusation, and a list of the witnesses on whose testimony the charge against him is founded." In Inman v. State, 72 Ga. 269, a list of the witnesses on which the indictment was founded was furnished to the accused on his demand, but another witness not appearing on the list who did not appear before the grand jury was permitted to testify. Substantially to the same effect was the decision in Echols v. State, 101 Ga. 531 (29 S.E. 14). In a more recent case it was ruled: "That the name of a witness offered by the State was not indorsed on the indictment, or, if it was so indorsed, that he had not in fact testified before the grand jury, furnished no ground for excluding his testimony." Taylor v. State, 138 Ga. 826 (5) (76 S.E. 347). Held:
(a) By analogy neither would the admission of such testimony be ground for declaring a mistrial.
(b) Accordingly, where as in the instant case the defendant demanded a copy of the indictment and list of witnesses on whose testimony the indictment was founded, and was by agreement of counsel furnished the original indictment on which appeared a list of witnesses, it was not ground for abatement of the indictment or for excluding evidence of a witness whose name appeared on the indictment, that such witness did not in fact appear before the grand jury and give testimony on which the indictment was founded; nor was admission of pertinent testimony of the witness ground for declaring a mistrial. *Page 259
(c) The court did not err in dismissing the plea in abatement, or in refusing to rule out the testimony of the witness named in the plea in abatement, or in refusing to declare a mistrial.
(d) The decision in Regopoulas v. State, 115 Ga. 232 (41 S.E. 619), is not authority for a different ruling. It was held that the fact that the list furnished in response to the demand of the accused was "incorrect" is not ground for a "motion in arrest of judgment." But it was added that "he could have moved for a mistrial of the case when he discovered that the list given him was incorrect." The reported facts of the case show that by mistake no list of the witnesses who appeared before the grand jury was furnished, but that the name of only one witness was furnished, and that such witness had not appeared before the grand jury. It was with reference to this state of facts that the quoted remark was made. It is apparent that the facts differ from those in the instant case, and that the quoted dictum can not be applied.
3. In view of the defendant's statement before the jury, to the effect that he was assailed; that the assailant attempted to shoot him with a pistol, and, being prevented by another, he walked off and started to draw the pistol again; whereupon defendant commenced to shoot the assailant, the judge charged: "A bare fear of the offense of murder, that is, that murder might be committed, a bare fear that murder might be committed, to prevent which the homicide is alleged to have been committed, shall not be sufficient to justify the killing. It must appear that the circumstances were sufficient to excite the fears of a reasonable man, and that the party killing really acted under the influence of those fears, and not in a spirit of revenge." Held, that the charge was properly adjusted to defendant's contention as shown by his statement, and was not error as alleged, "because it had the effect of instructing the jury that before movant had the right to kill, . . it must appear that the circumstances were sufficient to excite the fears of a reasonable man that he was about to be murdered." See Nail v. State, 142 Ga. 595 (83 S.E. 226).
4. The judge charged the jury "that a conspiracy consists in a corrupt agreement between two or more persons to do an unlawful act, unlawful either as a means or as an end. This agreement may be established by direct proof or by an inference, as a deduction from conduct, which discloses a common design, on the part of the persons charged, to act together for the accomplishment of the unlawful purposes. This question, that is, whether or not a conspiracy has been established, is for the jury to determine. If you find there was a conspiracy, and that the defendant participated in the common intent and purpose to do what was done, and what was done is that which is alleged in the indictment, then what was done by any other person named in the indictment in pursuance of that common intent and purpose would be just as binding upon him as if he did the act himself. If you find there was no conspiracy, or if there was conspiracy and the defendant did not participate in the common intent and purpose to do what was done, or that what was done was not that which is alleged in the indictment, then anything done by any other person could not be binding upon the defendant in this case." Held:
(a) It is not a good criticism of this charge, that it was erroneous because *Page 260 a conspiracy was not alleged in the indictment. Dixon v. State, 116 Ga. 186 (8, 9) (42 S.E. 357).
(b) Neither was the charge erroneous, as contended, because the evidence failed directly or circumstantially to show any conspiracy between the defendants named in the indictment. There was circumstantial evidence that would have authorized a finding that a conspiracy existed between the defendants to kill the deceased.
(c) If the charge was objectionable upon any ground not taken in the motion for a new trial it was not cause for reversal.
5. The judge gave in charge a requested instruction, concerning which he further stated: "As to whether that principle of law is applicable in this case is entirely a question for you to determine under all the evidence, facts and circumstances of this case, including the defendant's statement." The judge also gave another requested charge concerning which he made a statement substantially similar to that relating to that made in reference to the first request. Error is assigned upon these additional statements of the judge, substantially on the ground that they tended to advise the jury that the requested charges which were given "might not be applicable to" the case, but were applicable "only to special cases," and that such statements were harmful and prejudicial to the movant. Held, that there was no error in the added instruction.
6. The judge refused a request to give the following in charge: "I charge you that in a criminal case, such as the one now on trial, the jury are the judges of the law, in this: that the jury has the right to acquit the prisoner, although the court may charge them that if certain facts be proven he is guilty according to law, and although they may find the facts to be proven. The court is their safe and reliable adviser as to the law." The request did not state a correct principle of law, and was properly refused. Berry v. State, 105 Ga. 683 (31 S.E. 592); Jillson v. State, 187 Ga. 119 (2) (200 S.E. 707).
7. The evidence was sufficient to support the verdict, and there was no error in refusing a new trial.
No. 13176. APRIL 11, 1940. REHEARING DENIED MAY 18, 1940. 1-5, 7. The rulings announced in headnotes 1 to 5 inclusive and seven do not require elaboration.
6. The request to charge quoted in headnote 6 is substantially an excerpt from the headnote in McGuffie v. State, 17 Ga. 497 (12). The judge in that case charged on request that the jury "are judges, both of the law and the facts, and have the legal right, both to construe the law and apply the facts," but added, "the *Page 261 law as given you in charge by the court." In the opinion it was said that the court "erred in restricting the jury, as he did on this point, to the law `as given them in charge by the court.'" This court had dealt with a similar question in Holder v.State, 5 Ga. 441 (2) (not cited). It was said in the opinion that it is the privilege and duty of the court to instruct the jury "as to what the law is, and officially to direct their finding as to the law, yet, at the same time, in such way as not to limit the range of their judgment. In short, the court in the full exercise of its own functions must still obey the behest of the statute, and concede to the jury the exercise of their judgment on all the law of the case." The same principle was decided in Ricks v. State, 16 Ga. 600, 604. In McPherson v. State, 22 Ga. 478 (2), decided in 1857, it was held: "The jury, being the judges of the law and the fact, are not bound to go by the charge which the court makes, as to what is the law, unless the charge truly states what the law is; and whether the charge does that or not the jury have the right to decide." At the time of the decisions cited above the Penal Code of 1833 was in vogue. The 16th section of the 14th division of that Code was as follows: "On every trial of a crime or offense contained in this Code, or for any crime or offense, the jury shall be judges of the law, and the fact, and shall in every case give a general verdict of `guilty,' or `not guilty;' and on the acquittal of any defendant or prisoner, no new trial shall on any account be granted by the court." Ga. L. 1833, pp. 143, 207 (Code of 1933, § 27-2301). It was with reference to this law that the above decisions were made. Under that law juries were not permitted to render special findings in criminal cases, but were confined to general verdicts of "guilty," or "not guilty." Such verdicts might cover a multitude of undefined and unexpressed individual or collective views of the law entertained by the jurors unlearned in the law, upon which error could be assigned with uncertainty, if at all. Under the interpretation of this law as given in the above decisions, the functions of the judge were mainly advisory, to be given no effect if the jurors happened to think otherwise. In 1850 was enacted what is commonly called the dumb act which inhibits expression or intimation of opinion by the judge on any question of fact. Cobb's Dig. 462 (Code, § 81-1104). This act was not mentioned in the McPherson case decided in 1857, but it is significant that *Page 262 inhibition did not extend to opinions on questions of law, thus separating questions of law and fact. In 1868, while conditions were as indicated above, the case of Anderson v. State,42 Ga. 9, arose. Without mention of the former cases it was without elaboration held not to be error for the judge to charge the jury, "that they were the judges of the law and the facts, so as to enable them to apply the law to the facts, and bring in a general verdict, but they had no right to make the law; the law was laid down in the Code; it was the province of the court to construe the law and give it in charge, and of the jury to take the law as given, apply it to the facts as found by them, and bring in a general verdict," and to refuse a requested charge on that point. With this decision presumptively in the minds of the framers of the constitution of 1877, it was declared, in part (art. 1, sec. 2, par. 1), that "the jury in all criminal cases shall be the judges of the law and the facts." Code, § 2-201. This has been held to refer to the jury as "judges of the law and the facts," as interpreted in the Anderson case supra. Hill v. State, 64 Ga. 453, 471 (2); Ridenhour v. State,75 Ga. 382 (4). It was said in the Ridenhour case: "In the earlier decisions of this court it was held, in construing the Penal Code of 1833, that in a criminal case the jury were judges of the law and the facts in such sense that they could determine the law to be different from that given in charge by the judge, and such was the uniform ruling until after the late civil war. Without expressly overruling these decisions, the later rulings of the court have been to the contrary; and in 64 Ga. 454, construing the constitution of 1877, the later rulings were reaffirmed by the unanimous decision of a full bench; and though two members of the present bench do not concur in opinion with that decision, it is binding unless reversed by a unanimous bench." To the same effect is Danforth v. State, 75 Ga. 614,623 (58 Am. R. 480). It was there said: "That the court did not err in instructing the jury that, although they were judges of the law as well as the facts, under the constitution and laws of the State, they should take the law from the court, as it was responsible for its correct exposition. has been determined by this court in several cases [citing]. It is true that two of our number express dissatisfaction with that view of the law; but not being unanimous in opinion as to the propriety of reviewing former rulings upon that subject, *Page 263 as we had to be under the act of the legislature (Code, § 217), we were compelled to affirm those rulings, and make them the settled law upon that subject, and so they must be regarded, so far as this present bench is concerned, unless the legislature shall see proper to prescribe a different rule." See Malone v.State, 77 Ga. 767 (2). When the question again came up for decision in Berry v. State, 105 Ga. 683 (31 S.E. 592), the entire bench concurring, it was held: "It is the province of the court to construe the law applicable in the trial of a criminal case, and of the jury to apply the law so construed to the facts in evidence. While the impaneled jurors are made absolutely and exclusively judges of the facts in the case, they are, in this sense only, judges of the law." In the opinion it was said. "As early as the case of Anderson v. State, 42 Ga. 9, this court held, that under a proper interpretation of the law, the jury `were the judges of the law and the facts, so as to enable them to apply the law to the facts, and bring in a general verdict, but they had no right to make law; the law was laid down in the Code; it was the province of the court to construe the law and give it in charge, and of the jury to take the law as given, apply it to the facts as found by them, and bring in a general verdict.' Previous to that time it had been held that the jury were the judges of the facts and of the law; but that decision gave a different interpretation of the law as to the power of juries to judge of the law applicable to a case on trial, and the charge of the judge was in accord with the ruling there made. This has been followed, without exception, since the case ofAnderson, and is now the settled law of this State; and there was no error committed by the court in charging as set out in the ground referred to, and in refusing to charge as requested on this subject." This decision has been consistently followed since its rendition. Jackson v. State, 118 Ga. 780, 782 (45 S.E. 604); Rouse v. State, 136 Ga. 356 (6) (71 S.E. 667);Davis v. State, 136 Ga. 798 (72 S.E. 157); Brannon v.State, 140 Ga. 787 (5) (80 S.E. 7); Hill v. State,148 Ga. 521 (3) (97 S.E. 442); Jillson v. State, 187 Ga. 119 (2) (200 S.E. 707); Mims v. State, 188 Ga. 702 (4) (4 S.E.2d 831). On the point in question the decision in Berry v. State, and the cases following it, in effect overruled the decisions in the cases of Holder, McGuffie, and McPherson, supra. Everything was done to overrule them, except formally naming them *Page 264 for review. On the basis of the later decisions the court has given notice to the parties, and on formal review overrules the earlier cases to the extent indicated. It is held that the request to charge as stated in the sixth special ground of the motion for a new trial was properly refused, because it did not state a correct principle of law.
Judgment affirmed. All the Justices concur.