The accused was brought to trial on an indictment for murder, and the jury returned a ’ verdict of voluntary manslaughter. He made a motion for a new trial,, and to the judgment overruling this motion he excepts. . ; ■;
■1. One of his complaints is that the coqrt failed to charge the jury as'to the law bearing on the evidence introduced by him as
2. It is further insisted by the plaintiff in error that the court ought to have charged concerning the character .of the deceased for turbulence, and violence, while instructing the jury as to certain other circumstances to, which they could look in determining whether or not.the accused acted under the fears,of a reasonable man; and error is assigned on the charge given upon this subject, because the court did not, in the, same connection, tell the jury they might also consider the evidence as to the.character of the deceased for. turbulence and violence. . The charge given was unobjectionable; and even had it been incumbent on the court to charge concerning the character of the.deceased, the omission so todo could not be. taken advantage of ,by assigning error upon this charge. Roberts v. State, 114 Ga. 450.
3. In stating the contentions of the accused, the court said: “ He says he had a right to kill to save his own life; that he was acting ,in self-defense to 'prevent a serious personal injury, it being a felony, from being committed upon him,: — to prevent a felony from being committed; .upon him.!’ , The error assigned upon this instruction is that it did not correctly state the defend
In charging upon the law of self-defense the court informed the jury that “ justifiable homicide is the killing of a human being in self-defense, as against one who manifestly intends or endeavors, by violence or surprise, to commit a felony upon him,” and that, “as against one who manifestly intends by violence or surprise to commit a felony upon his person, such person has a right to take human life, if it is necessary for his defense.” This charge was fully in accord with the definition of justifiable homicide given in the-Penal Code, §70. However, complaint is made that this charge “ withdrew from consideration by the jury the apparent necessity to kill, and restricted them to a consideration of the
The court, while charging as to what the law regards as the fears of a reasonably courageous man, told the jury that the danger “ apprehended must be urgent and pressing, or apparently so, at the time of the killing.” It is insisted by the plaintiff in error that this instruction was not applicable to this casé, and could only apply to a case where the evidence disclosed “ a mutual intention to fight.” We can not .concur in this view. “ A bare fear ” of injury can never be regarded as sufficient to justify a homicide. Penal Code, § 71. And, as was said in the case of Jackson v. State, 91 Ga. 271 (1): “The doctrine of reasonable fear as a defense does not apply to any case of homicide where the danger apprehended is not urgent and pressing, or apparently so, at the time of the killing.”
Exception is also taken to the following charge of the court: “ The law does not require, gentlemen, that a defendant should wait until an actual assault upon him has reached a stage where resistance would be useless. If the situation is such that a reasonable man, in the situation of the defendant, would be justified in believing that his life was in danger, or that a felony was about to be committed upon him, he could act; and what is the apparent danger should be considered by you as the real danger.” An instruction more favorable to the accused would have been wholly unwarranted. Yet he contends that this charge had. the vice of leaving it “ discretionary with the jury to consider the apparent danger the real danger, when the jury should have been instructed that where the circumstances were sufficient to excite the fears of a'reasonable man that his life was in danger, or that a felony was about to be committed upon him, under the law an apparent danger is the same as a real danger.” This complaint is altogether too hypercritical. The court told the jury that apparent danger “ should ” be considered by them as real danger,
It would certainly seem, from what is said above, that the trial-judge, very fully and fairly presented to the jury the defense relied on by the accused. But he has still another complaint, viz., that the court erred in not charging the jury: “ If you find that the words, threats, rnenaees, and contemptuous gestures, if there were such, were sufficient to excite the fears of a reasonable man, in the situation of defendant, that his life was in danger, or that a felony was about to be committed upon him, and the defendant acted.under the influence of those fears, and not in a spirit of revenge, the killing would be justifiable.” Had counsel for the accused presented to the judge a timely written request to so charge, such request might very properly have been complied with. Cumming v. State, 99 Ga. 662. But as no request to charge was made, this assignment of error has no merit, under the ruling announced in the first division of this opinion.
It is barely inferable from reading another ground, of the motion for a new trial that the movant undertook to assign as error the giving of a strictly correct charge on the subject of reasonable fears excited by words, threats, menaces, and contemptuous gestures, because the court did not in the same connection give to the jury the desired instruction last above quoted. Nothing can be gained under this ground of the motion, for the following reasons: (l) the complaint which we infer was intended to be presented is not made with sufficient clearness, for the language of that ground is so confused that it is impossible (without reference to the copy of the
4. The accused was convicted of voluntary manslaughter, and contends that this result was brought about by error committed by the court in charging the jury as to the law in regard to that, .grade of homicide, when “neither the evidence nor the statement of defendant raised the question of manslaughter.” A review of the evidence and the prisoner’s statement is thus rendered necessary. It appears, from the testimony of witnesses' who were present when the homicide occurred, that the accused, the deceased, and two other negroes were walking along a country road. They had “drunk a little liquor and were all in a jolly humor.” Only one of them, the deceased, had a pistol. It belonged to the accused. The crowd had previously been gambling, and the accused let the deceased ‘-‘have the pistol to get some money to play the game,” and he thus came in possession of it. The deceased was quite boisterous, and, after the crowd started down the road, caught the accused and “told him he shouldn’t go home.” • The deceased then had the pistol out, and made two of the party drink some whisky which he pulled out of his pocket. He then told his companions “ to get in front of him and march,” that he was their “ captain,” and carried them down the road a piece. He then .said “ he was going to shoot one of them. He said he wanted to shoot him a man; wanted to see him fall.” The defendant commenced talking to him, and he said the defendant was the one ha was going to shoot. Defendant then turned his back on the deceased and commenced crying. The defendant went off to the. side of the road crying, and stayed there until the deceased “ taken pity on him and went to him,” saying: “You know I aint going to bother you.” “ They went on then and made friends for
Under this somewhat confused account of the homicide, it would seem that the accused was guilty of deliberate _ murder. But there was other testimony from which the jury might well have concluded that the truth of the case was as .follows: .Only two shots were fired. When the accused last took the pistol from the deceased, the latter started towards the former; whereupon he immediately fired, striking the deceased in the knee. While the deceased had his hand in his pocket, he had madé no attempt to draw a knife or any other weapon, nor had he manifested any intention of committing any serious bodily harm upon the person of the accused, nor made any threat to do so. The two shots were fired in quick succession, the second before it became evident to the accused that the deceased was no longer advancing upon him but was turning to flee. The accused did not act in a spirit of revenge, as he had endeavored up to the last moment to avoid any difficulty, but under a groundless fear that, unless he shot, the deceased would inflict upon him great bodily injury.
In his statement before the jury, the accused very stoutly asserted that he was not actuated by any spirit of malice or resentment, and shot the deceased only because he was “scared” the deceased was going to kill him. The jury were authorized to accept as true this much of his statement. They were also at liberty to reject (as an afterthought) the further assertion of the accused that, at the time he fired two shots in rapid succession, the deceased was advancing with an open knife in his hand. This is especially so in view of the fact that none of the eye-witnesses of the homicide, though having equal opportunities of observation, and though one of them testified in behalf of the accused, bore him out in this assertion. It is in just such a case as the present (where it would be manifestly unjust to the accused to hold, as matter of law, that, if the homicide was not wholly justifiable, he was actuated by malice and not by a sense of cowardly fear) that the jury should be left to determine whether, if they find his plea of self-defense is without merit, he is guilty of murder or only of voluntary manslaughter. The present case did present this ques