Allen v. State

• Decision Date: 18 April 1910
• Citation: 67 S.E. 1038,134 Ga. 380
• Parties: ALLEN v. STATE.
• Court: Georgia Supreme Court

67 S.E. 1038

134 Ga. 380

ALLEN v. STATE.

Supreme Court of Georgia

April 18, 1910

Syllabus by the Court.

In a case of one on trial for murder, where the evidence presented only two phases of homicide, viz., that of murder or accidental homicide, it was not error to charge: "A person shall not be found guilty of any crime or misdemeanor committed by misfortune or accident, and where it satisfactorily appears there was no evil design, or intention, or culpable neglect."

It is the duty of the judge to construct his charge according to the case as made by the evidence; and if a theory is presented only by the statement of the defendant, the court is not required to present that theory, except when requested in writing.

Error from Superior Court, Emanuel County; B. T. Rawlings, Judge.

Charles Allen was convicted of murder, and brings error. Affirmed.

Saffold & Larsen, for plaintiff in error.

Alfred Herrington, Sol. Gen., Hines & Jordan, and Jno. C. Hart Atty. Gen., for the State.

EVANS P.J.

Charles Allen was convicted of the murder of Beatrice Green, and recommended to the mercy of the court. He excepts to the court's refusal to grant him a new trial. The prosecution submitted evidence at the trial tending to prove that the defendant escorted the deceased to a dance, and while she was dancing with another man the defendant deliberately shot her with a pistol, inflicting a wound in her forehead which caused her death. The defendant contended that he accidentally dropped the pistol on the floor, and that the impact of the pistol with the floor caused its discharge. The court instructed the jury on two phases of homicide, to wit murder and accidental homicide. The special grounds of the motion for new trial complain of the incorrectness of the instructions defining homicide by accident or misadventure and of the omission of the court to charge on the law of involuntary manslaughter.

1. The court read to the jury Pen. Code, § 40, that "a person shall not be found guilty of any crime or misdemeanor committed by misfortune or accident, and where it satisfactorily appears that there was no evil design, or intention, or culpable neglect." The error of the instruction is alleged to consist in this: Inasmuch as the court only instructed on the law of murder and accidental homicide, he should have eliminated any reference to a killing resulting from culpable neglect, as a homicide caused by neglect is neither murder nor excusable as an accident and therefore the...