Baker v. State
| Decision Date | 02 April 1913 |
| Docket Number | 4,634. |
| Citation | 77 S.E. 884,12 Ga.App. 553 |
| Parties | BAKER v. STATE. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Where one cocks a loaded gun, places his finger upon the trigger and points it at another, not intending to shoot, and the gun is discharged without design, but as a result of his culpable neglect while in the unlawful act of pointing the gun at another, he may be convicted of involuntary manslaughter in the commission of an unlawful act, if the person at whom the gun is aimed dies from wounds received from the discharge of the gun.
The principle announced in the preceding headnote was applicable to some of the evidence, construed in connection with the prisoner's statement.
It was not error to charge the jury: "If you find that the defendant pointed a gun at the deceased, not intending to kill him, and pulled the trigger and fired, the result of such conduct, under the law, would not be accident:"
The following instruction was erroneous as giving undue emphasis to evidence, the weight of which should be left for determination by the jury: "I charge you that the theory of the law in admitting dying declarations as evidence is that a person would be just as sure to make a truthful statement when he is in the article of death, when he knows that he is to leave this world and enter the next world, as if he was under the sanctity of an oath."
Error from Superior Court, Montgomery County; K. J. Hawkins, Judge.
Richard Baker was convicted of involuntary manslaughter, and brings error. Reversed.
John R Cooper, of Macon, and C. P. Thompson, of Atlanta, for plaintiff in error.
E. D Graham, of McRae, and W. A. Wooten, Sol. Gen., of Eastman for the State.
1-3. The accused was convicted of involuntary manslaughter in the commission of an unlawful act. It appears that the accused and a brother of the deceased were engaged in a dispute in reference to a sum of money which the brother owed the accused. While the dispute was in progress, the deceased rode up and suggested that the accused put up the gun which the accused had in his hand, and go home and take dinner with the two brothers. The accused, who was drinking, declined this invitation, and raised his gun, cocked it, and pointed it at the deceased. The deceased thereupon approached the accused, took hold of the gun by the barrel, pushed it down, and, while in this position, it was discharged, and the load of small shot entered his leg. He died three days afterwards in consequence of the wound thus received. The accused claimed that the homicide was the result of misadventure; that the gun was accidentally discharged in a scuffle over it between him and the deceased. Taking the evidence altogether, in connection with the prisoner's statement, the jury were authorized to find that the accused pointed the gun at the deceased with no intention to discharge it, and that it was fired without design on his part. If this be true, the accused was guilty of involuntary manslaughter in the commission of an unlawful act. It was unlawful to point a gun at the deceased; and the trial judge correctly so charged the jury. The law of misadventure or accident, as contained in the Penal Code, expressly excludes culpable neglect, so that, if a homicide be committed without evil design or intention, but with culpable neglect, it cannot be said to have been the result of misfortune or accident. Penal Code, § 40; Allen v. State, 134 Ga. 380, 67 S.E. 1038. Under the prisoner's statement it was proper for the judge to give in charge this section of the Code. But the jury had the right to accept that theory of the evidence which indicated that the deceased came to his death in consequence of the unlawful act of the accused in pointing the gun and his culpable neglect in connection therewith. Penal Code, § 67. There was no error in any of the instructions upon this subject which are complained of in the motion for new trial.
4. It was erroneous to charge as set forth in the fourth headnote. The jury are the exclusive judges of the weight to be given evidence of a particular character. It is error to charge the jury, in substance, that a man in the article of death is just as apt to make a truthful statement as if he were testifying under oath. It is for them to say what weight and credit is to be given a dying statement, taking into consideration all the circumstances. It would be equally erroneous to instruct the jury that the testimony of a witness under oath should receive the same credit as if it had been made as a dying declaration. It is the province of the jury, and not the judge,...
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