All of tbe grounds of tbe motion for a new trial were properly abandoned, upon tbe hearing before this court, except the 4th, 8th and 15th.
1. The fourth ground complains of the judge’s charge in relation to the force and effect of ihe prisoner’s statement as evidence. After instructing the jury that this statement should have such force only as they might see proper to give it, but that, although it was not made under oath, they might believe it in preference to the sworn testimony in the case (Code, §4637), he added, that it was proper to call attention to the fact that the evidence was delivered under oath, and that the prisoner’s statement was not, and-they should not set aside the sworn testimony of witnesses without sufficient cause; that they should look to the evidence, and determine from that what the truth was, and then to the prisoner’s statement, and then give to it such force as they might think proper, and from the whole case, as thus presented, they would find the truth; that the law cast upon them the responsibility of doing this.
2. We are of opinion that there is no error in refusing to charge as set forth in the 8th ground of the motion for a new trial. There is nothing in the evidence which could have justified the court in instructing the jury that they might find a verdict for a lower grade of the offense than that set forth in the indictment, — as stabbing, or assault, or assault and battery. There was no actual assault made upon the defendant, nor any attempt to commit a serious personal injury upon him by the young girl whom he assailed with a deadly weapon, nor were there other equivalent circumstances to justify the excitement of passion and to exclude all idea of deliberation or malice, either express or implied — nothing whatever to show that the attack was the result of a sudden, violent impulse of passion, supposed to be irresistible. This invasion upon the rights of a father and his family seems to have been deliberately planned, and to have been carried into effect in pursuance of a previously expressed purpose to have satisfaction or an explanation, or, in his own words, to make the family “ ante up.” After he had been disarmed, and his victim rescued from his grasp, and while he was smarting under this defeat, he expressed his intention to renew the combat and to kill her. It has been frequently held, that in such a case, the judge should not instruct the jury as to their power to find the defendant guilty of a lower grade of the offense charged.
3. There was no error in rejecting the testimony set out in the 15th ground of the motion. Taken in connection with the judge’s explanatory note, it is doubtful if it could have served the purpose of impeaching the witness, whose credit it seemed designed to affect. What it was in its full detail does not appear from the record; its materiality is not shown, and it is most manifest that if it was adduced to impeach the witness, no foundation was laid
As intimated, there is nothing in any of the other grounds of the motion entitling the defendant to a new trial. The verdict is not only sustained, but required by the evidence. We could not, therefore, if we would, and would not, had we the option, interpose to shield this defendant from just punishment for this most dastardly and murderous assault upon a woman, whose affections he had engaged, and of which he shows himself to have been eminently unworthy.'
Judgment affirmed.
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71 Ga., 276.