Alexander v. State

• Decision Date: 30 May 1903
• Parties: ALEXANDER. v. STATE.
• Court: Georgia Supreme Court

44 S.E. 851

118 Ga. 26

ALEXANDER.

v.STATE.

Supreme Court of Georgia.

May 30, 1903.

CRIMINAL LAW—HOMICIDE—DEFENSE OF FATHER—INSTRUCTIONS—SELF-DEFENSE—EVIDENCE.

1. The requests to charge, in so far as they were pertinent and proper, were fully covered in the general charge, which correctly submitted the issues to the jury.

2. The charge as to the right of a son to defend his father was as favorable to the defendant as he could legally ask, and was given without any suggestion as to whether it might not have been lost if the son knew that the father himself would have had no right at the time to kill the deceased.

3. While, in determining whether there was cause for reasonable fear, or whether the homicide was justifiable, the jury might consider the difference in size and physical condition of the parties, it would have been erroneous for the judge to instruct them that they should consider such disparity.

4. For the witness to state what was his intention was not opinion evidence, but proof of a substantive fact, and admissible in this case. The error in excluding such testimony was subsequently cured by allowing the witness to testify to his intention.

¶ 4. See Homicide, vol. 26, Cent. Dig. § 287.

5. There was no assignment of error whatever on the charge as given, and this being a second verdict of guilty, and there being no error requiring the grant of a new trial, the judgment is affirmed.

(Syllabus by the Court.)

Error from Superior Court, Early County; H. C. Sheffield, Judge.

R. W. Alexander was convicted of voluntary manslaughter, and brings error. Affirmed.

W. M. Hammond and A. G. Powell, for plaintiff in error.

J. A. Laing, Sol. Gen., for the State.

LAMAR, J. The defendant was granted a new trial (Alexander v. State, 114 Ga. 266, 40 S. E. 231), and again found guilty of vol untary manslaughter. It appeared that he fired several shots, one and probably the last of which killed Cherry. He insisted that he did so to protect his father against a felonious assault by Cherry; that thereupon the latter advanced upon the defendant in a threatening attitude, with an instrument likely to produce death in his hand; and that in shooting he acted under the fears of a reasonable man and in self-defense. The judge fully and fairly submitted the issues raised by the evidence; instructing the jury that the defendant was not guilty if he shot to defend his father against what he believed to be a felonious assault by the deceased, nor would he be guilty if he fired to protect himself, but that if the shot was fired, not for the protection of himself or his father, but because of a sudden heat of passion aroused by the attack made upon his parent, he would be guilty of voluntary manslaughter.

Several of the assignments of error were on the court's refusal to give requests to charge, based on the theory that, even if the father used opprobrious words towards the deceased, that did not warrant Cherry in making a felonious assault, nor would it take away the son's right to defend him from such an assault so caused. The charge on this subject was quite as favorable as the defendant had the right to expect. The jury were told that the son could defend his father from a felonious assault, or what he thought was such. This right was not qualified. It was not made to depend on whether the father was blameless or at fault in starting the altercation, nor whether the father would have been justified in killing Cherry at the time the son fired. Pen. Code 1895, § 74. While the right of husband and wife and parent and child to defend one another is fully recognized, some cases hold that one cannot defend another where the latter himself would not be authorized so to do; others rule that if one brings on a difficulty, or is in a position where it would be murder for him to kill his assailant, the relative would be guilty of a similar offense, if, under these circumstances, he should interpose and kill the blameless opponent. Saens v. State (Tex. Cr. App.) 20 S. W. 737; State v. Brit-tain, 89 N. C. 482 (5); State v. Melton, 102 Mo. 684 (3) 15 S. W. 139; State v. Herdina, 25 Minn. 161. In the present case no restriction or limitations were suggested. The judge gave the defendant the benefit of the fullest and most unqualified right to protect his father, regardless of whether the latter would then have been justified in killing Cherry, and the requests to charge on the subject of the defense of a father by a son were fully covered in the general charge. Pen. Code 1895, § 74.

Error is assigned because the court refused to charge that "in determining whether [the defendant] was acting under the fears of a reasonable man, and in determining whetherit was necessary for him to defend his father from an assault by Mr. Cherry, if any be proven, you should take into consideration any disparity proven to...