Banks v. State

• Decision Date: 26 March 1892
• Citation: 14 S.E. 927,89 Ga. 75
• Parties: BANKS v. STATE.
• Court: Georgia Supreme Court

14 S.E. 927

89 Ga. 75

BANKS v. STATE.

Supreme Court of Georgia

March 26, 1892

Syllabus by the Court.

Where on a trial for murder, the court, in its charge, grouped together and stated hypothetically the alleged facts constituting the state's theory of the homicide, there being evidence to authorize a finding that such facts existed and made a case of murder, and then instructed the jury that if these facts were true, defendant would be guilty of murder, it would be the duty of the court, if the evidence so authorized, to likewise group and state the alleged facts constituting the defendant's theory, and making a case of voluntary manslaughter, and to instruct the jury, if this theory be true, he would be guilty of the latter offense; but this duty would not devolve upon the court if the defendant's theory was unsupported by the evidence.

Error from superior court, Macon county; ALLEN FORT, Judge.

Prosecution against Ed. Banks for murder. Verdict of Guilty, and judgment thereon. New trial denied. Defendant brings error. Affirmed.

The following is the official report:

Ed Banks was found guilty of murder, and, his motion for new trial being overruled, he excepted. The grounds of the motion were the general ones that the verdict was contrary to law evidence, etc., and because the court erred, after fully charging the law of homicide as applicable to the case, at the close of his charge, in charging as follows: "If you should believe from the evidence that the deceased used to the prisoner opprobrious words, and that the prisoner without other provocation, retreated from the scene of the altercation, armed himself with a deadly weapon, returned to the deceased, and, on account of words spoken, slew him, it would be murder. If you should believe that he had an altercation, that the result of the altercation was to excite his passion by the speaking of opprobrious and insulting words, and that he deliberately left the deceased, procured a weapon which was a deadly weapon, if he returned to make an assault upon him, and was in the act of making an assault upon the deceased, and the deceased, to prevent such assault, used a weapon, not a deadly weapon, and, notwithstanding the use of such a weapon by the deceased, he prosecuted such assault to the slaying of deceased; if that be the truth of the case,--the offense would be murder. A person may not justify himself by bringing upon himself the necessity...