1. The evidence was sufficient to authorize the verdict.
2. Upon a trial for murder, where the defense relied upon is that of misfortune or accident, and the court charges this law as defined in the Code, § 26-404, and also charges fully upon the law of reasonable doubt, it is not error to fail to charge specifically that, if the jury have a reasonable doubt as to whether the homicide was voluntary or accidental, they should acquit. Woods v. State, 137 Ga. 85 (72 S.E. 908).
3. Where the court charges the law of misfortune or accident as stated in the Code, § 26-404, and then defines an accident, followed by the statement, "To absolve one from guilt of crime, it must not only appear that there was no evil design, but there was no culpable neglect," such portion of the charge is not error.
(a) Nor was it error for the court to fail to charge, in addition to the excerpt just above quoted, to the effect that the defendant could not be found guilty of a homicide, where it appeared to have occurred by misfortune or accident, or where the jury had a reasonable doubt, unless it should first appear that there was an evil design or intention or culpable neglect. Such a charge would have been contradictory.
Judgment affirmed. All the Justicesconcur.
No. 15378. FEBRUARY 19, 1946. The accused was charged with the murder of Irene Taylor, and convicted with a recommendation to mercy. The deceased was killed by a shotgun wound, about the size of a silver dollar, "about two inches to the left of the vertebrae just under the shoulder blade which is directly behind the heart." The killing took place in the back room of a dwelling house, and though others were present in the house, no one was in the room where the homicide occurred *Page 315 except the accused and the deceased. About four o'clock in the afternoon, three men went to the home of Mrs. Henderson to get some whisky. Mrs. Henderson was not at home, but her daughter was there on a visit. Also at this home was the accused and the deceased, both of whom resided there. Upon their arrival whisky was procured and two of the men, together with the accused and the deceased, went to the kitchen and some of them drank. At this time the accused was already drunk, and the deceased had been drinking. The two men left the kitchen and returned to the front room, leaving the accused and the deceased in the kitchen. This placed all the occupants in the front room except the accused and the deceased. A graphonola was playing in the front room, and continued to play. After the accused and the deceased had been left in the kitchen about fifteen or twenty minutes a gun shot was heard. The accused then came to the door of the front room (which adjoined the kitchen) and called one of the occupants of the front room saying, "come here a minute," but the party spoken to would not go and the accused shut the door. A few minutes thereafter one of the occupants went in and found the deceased dead in a small room adjoining the kitchen. Whether there was any loud talking or scuffling before the shooting could not be determined on account of the graphonola playing in the front room, where all of the occupants were. The shotgun used was kept in the room occupied by the accused. Shortly after the shooting the accused was seen about a mile or a mile and a half from where the shooting took place, drunk, and with a shotgun with blood upon it. He cursed and threatened a witness with the gun in an effort to be carried to Summerville. The witness overpowered him and took the gun. Several men then took him to jail. There is testimony that en route "about the second word he said was that he had killed a woman, and he would kill somebody else if they did not take him to Summerville. . . He was cursing all the time and said he had just killed one and would kill another if I did not give him his gun. . . He . . said: `I ain't going to walk no further, you get me a ride. . . I don't give a God damn if you do kill me, I'm going to the electric chair anyhow, but I'll be damned if I'm going to walk all the way.'"
In his statement the accused said the deceased got mad with *Page 316 him while they were alone in the rear of the house and threatened to kill him. That she got the gun, and in an effort to take the gun away from her it was discharged in the scuffle.