This case makes its second appearance. Long v. State, 126 Ga. 109. The accused has been convicted, for the second time, of the offense of murder, and he complains of the refusal of the judge to grant him a second new trial. The motion contains the general grounds and numerous special grounds. Such of the special grounds as are verified by the judge and were insisted on in the argument here will be now dealt with.
1. A witness, Wortham, was offered by the defense, by whom it. was expected to prove that he was an expert shot, and had a knowledge of guns, pistols, and shells. He was asked the question, “Do you belong to any kind of club?” Whereupon the judge remarked, “Half of these clubs shoot part of the time, and drink and play cards the other time. I do not know about, and do not mean to apply this statement to this man.” It is claimed by counsel for the accused that this remark of the judge was calculated to discredit the witness, and that a new trial should be granted for this reason. It appears, from a note of the judge to this ground of the motion, that almost immediately after the alleged prejudicial remark was made, the judge stated that he desired to say, in justice to the witness, that he ought not to have stated what he did about members of such clubs, and that the statement was withdrawn, and that the jury were instructed to pay no attention to it, and not to .allow it in any way to discredit the witness or weaken his evidence before them; and the judge, in the hearing of the jury, stated to the witness that his remark did not apply to him, and that no reflection upon him was intended. In addition to this, at the conclu
2. The accused offered a witness, Harrison, who testified that the: right side of the deceased was to the accused when he was shot. The State introduced three witnesses who swore that Harrison testified before the coroner’s jury that the back of the deceased was to the accused when he was shot. The accused offered the evidence of Harrison before the coroner’s jury, as taken down.
3. Error is assigned upon the following charge: “Legal malice is not ill will- or hatred. It, is án unlawful intention to kill,, without' justification or mitigation, which must exist at the time of the killing. But it is not necessary for that intention to exist for any length of time before the killing. A man may form the intention to kill, do the killing instantly, and regret the deed as soon as. done.” There was no error in this charge. Bailey v. State, 70 Ga. 617 (2 a); Weeks v. State, 79 Ga. 37(4). Complaint is made' that the court erred, after charging as follows: “It is only when a felony is intended that the killing is justifiable. A felony is any offense punishable by death or by imprisonment • in the penitentiary,” in adding, Simply pointing a gun at another is not a felony, it is a misdemeanor.” One theory of the State .was that while, the deceased had pointed a gun at the accused, he had also, at the same time, pointed it at- two others. Counsel for the accused contends that the instruction in reference to -pointing a gun at another being only a misdemeanor was calculated to create the impression that the defense of the accused rested solely upon the ground of reasonable fear resulting -from the gun being pointed, whereas the defense also rested upon the ground that the deceased was about to Use a pistol. It was the duty of the judge to submit to the jury all of .the theories of the accused; and the charge does not seem, on .the statement made by the judge as to what were the contentions off the parties, to have been erroneous. Error was assigned upon the following charge: • “When a witness has been successfully impeached by any of the legal methods, that is, where his unworthi
4. Complaint is made that the court failed to charge the juay that the effect of evidence showing that -a witness had made statements contrary to those contained in his testimony was not to establish ‘the facts stated in such contradictory statements, but merely to discredit the witness. There was no request for instructions ■on this subject, and, in the absence of such a request, the omission ■of the judge will not be sufficient reason for the granting of a new trial. '
5. Error is assigned upon the following charge: “A general character for violence can not be established by proof of specific acts, under the law, but in this ease, by agreement of counsel, specific acts have been admitted to you and you are authorized to give them consideration.” It seems that, by agreement between the solicitor-general and counsel for the accused, specific acts of violence were admitted without objection. Notwithstanding this course on the part of counsel, it was not erroneous for the judge to give the jury the correct law. No agreement of counsel.can constrain the judge to lay down, in instructing the jury, that which is not the law of the land. The complaint, however, is that the language of the judge might have had the effect to weaken the force, of the legal evidence offered to establish violent character. We do. not think the instructions were subject to this criticism.
6. Complaint is made of the following charge: “If, at the time the deadly blow was inflicted, the person who inflicts has well founded reasons to believe himself in imminent peril, without having, by his fault, produced the exigency, then such killing will not be murder.” The error assigned is that the words “has well
7. In one of the grounds of the motion for a new trial it is stated that the defense of the accused rested upon two propositions: (l) that he killed the deceased under an honest belief that his own life was in danger, and (2) that the killing was due to the fact that an honest belief existed in the mind of the accused that the deceased was about to commit a felony upon the witness Harrison, or the witness Rogers, or both, and it was necessary to take the life of the deceased to prevent the commission of this felony. Error is assigned in'the following language: “This latter proposition was nowhere given the prominence in the charge that was given to the ■first proposition.” It is stated, in the assignment of error, that this theory was embraced in the instructions of the judge, but the complaint is that it was not given the prominence that it was entitled to, and was not coupled with the other defense in such way as would give the accused the full benefit of the defense. We see no reason for reversing the judgment on account of the manner in which the judge dealt with the different theories of the defense, as it is admitted, in the assignment of error, that the charge embraced each of the theories. In addition to this it appears, from a note to this ground, that the theory referred to in the assignment of error was presented to the jury in a written request presented by counsel for the accused. The judge also states that when this request was read to the jury by one of the counsel before it was handed to him, this was the first intimation that he had that the defense would be insisted on. It seems, therefore, that the accused has received the benefit of this theory in the exact language of a request which his counsel prepared.
8. In one of the grounds of the motion for a new trial complaint is made of the refusal" of the judge to grant a new trial upon the ground of newly discovered evidence. The judge refused to consider this ground, holding that the affidavits were not entitled in the cause. -There is no assignment of error, in the bill of exceptions, upon this ruling by the judge, and therefore the ground will not be considered. We can not, of course, on the merits of this ground review and reverse the judgment; for the reason that the judge has never passed on this question. The judgment can not
9. The foregoing discussion disposes of all the special assignments of error that are in such condition that we can properly deal with them. The charge of the court, when taken as a whole, fully, fairly, and clearly set forth the law relating to every material issue in the case, and the accused was given the benefit of every theory of defense that the evidence, in any view, authorized. The evidence was conflicting, and was of such character as to have authorized, in one view at least, a verdict of acquittal; but there was certainly ample evidence authorizing the verdict as rendered. The only assignments of error in the case which have given any serious trouble are those relating to the remarks of the judge to the witness Wortham, and his remarks to counsel when admitting the evidence •of Harrison as taken down at the coroner’s inquest. These incidents in the trial were irregularities, and, of course, it would have been far better if they had not taken place; but, after a most careful examination of the record, we do not feel justified in saying that these irregularities were of such character as to require us to reverse the judgment refusing a new trial. The verdict now sought to be set aside is the second one rendered in the case; and while, of course, no number of verdicts will sanctify a finding unauthorized in law, still, where in each instance there was evidence authorizing the finding, and a second finding is under review, this court will not reverse a judgment refusing a new trial, for a mere irregularity which took place during a protracted trial, when our minds are satisfied that nothing in the irregularity was calculated to seriously prejudice the accused, and that a different result would not probably have been reached even if the irregularity had not occurred. We think the defendant has had a fair and impartial trial, within the meaning of the law, and the judgment complained of must stand.
Judgment affirmed.