Lewis v. State
| Decision Date | 01 August 1892 |
| Citation | 15 S.E. 697,90 Ga. 95 |
| Parties | LEWIS v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. When counsel on cross-examination propounds a trivial question which can elicit nothing of any possible consequence touching the case, it is not error for the court to remark, "I do not think that is a proper examination."
2. There was no error in the charge of the court touching the legal presumption which arises, and the shifting of the burden of proof, when the state shows by evidence that the homicide was committed by the accused, nor touching the nature and constituents of malice, nor in classifying the case on trial as one of murder or misadventure exclusive of any grade of manslaughter, nor touching the prisoner's statement and reconcilement of conflicts in the evidence, nor touching reasonable doubt, nor touching the form of the verdict, nor touching any other of the matters complained of. Nor was there any error in omitting to charge on the subject of manslaughter, all the facts of the case, including the prisoner's statement, being wholly inconsistent with manslaughter, voluntary or involuntary.
3. The indictment charging that the accused murdered "Mirandy" Lewis, and the evidence showing that the person killed was "Melinda" Lewis, and there being no proof that the deceased was ever known as "Mirandy" Lewis, or called by that name, there was a fatal variance between the indictment and the evidence. The conviction for murder, therefore, was contrary to law and evidence.
Error from superior court, Bibb county; A. L. MILLER, Judge.
Louis Lewis was convicted of murder, and brings error to an order of the court overruling his motion for a new trial. Reversed.
Where there was evidence tending to show that defendant was told by his wife that there were others than he from whom she could obtain money, and that he told her that if she said so again he would kill her, and, without more ado, shot and killed her, and he stated that the shooting was accidental, the court properly instructed the jury that they were to determine only whether it was a case of murder, or accident or misadventure, exclusive of any grade of manslaughter.
The following is the substance of the official report:
The motion contained the general grounds that the verdict was contrary to law, evidence, etc., and contrary to a specified portion of the charge. Also because the court erred in charging: "A rule of law applicable to this case is this: That where the state shows by evidence that the defendant has committed an unauthorized homicide, and stops there, the evidence showing no more than that, then the legal presumption arises that the homicide was murder, and that the burden is then shifted to the defendant to show that either it was justifiable or accidental, as claimed in this case, or that it was some of the lower grades of homicide. You will see that the proposition, stated differently, is this: That if the evidence on the part of the state simply shows the homicide, and that evidence itself does not show that it was justifiable, or of a lower grade than murder, then the state can stop without proving more, and the law presumes that the killing was murder; that it was done with malice, and denominates it 'murder.' The defendant must remove that presumption by showing to the jury that the killing was either justifiable, accidental, or that it falls within some of the lower grades of homicide than murder. In trying this case you pass upon the law and facts both; that is to say you take the evidence and defendant's statement, and determine from that what is proven in the case,--what facts are established.
The principles of law that control the case you take from the court; you are responsible. It is your duty, and yours alone to find what is the truth from the evidence. I am responsible for instructing you properly as to the principles of law controlling the case. You take the facts as you find them established by the proof, applying the law to the evidence, and determine what is the proper verdict, under both the law and the evidence in the case. The verdict ought to always speak the truth, not only of evidence, but the law. It is compounded of the two, and it ought to be the truth, under the law and evidence. 'Malice' in law, the jury will see, is not what the term popularly implies. It does not necessarily mean there should be personal hatred or personal ill will, or anything of the sort, between the defendant and person killed. It means, in law, the deliberate intention to take human life under the circumstances which the law neither justifies or excuses. If that intention is established by the proof, then the legal malice would be established, and you would be authorized to find that it existed, if the evidence showed that unlawful intention to take human life. All these questions, that are raised in so many cases of homicide tried by a jury,--of voluntary manslaughter, involuntary manslaughter, and justifiable homicide,--all of these are out of this case, and...
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