Benton v. State

• Decision Date: 14 December 1937
• Docket Number: 11875.
• Parties: BENTON v. STATE.
• Court: Georgia Supreme Court

194 S.E. 166

185 Ga. 254

BENTON v. STATE.

No. 11875.

Supreme Court of Georgia

December 14, 1937

Error from Superior Court, Fulton County; L. B. Wyatt, Judge.

Ralph Benton was convicted of murder, and he brings error.

Affirmed.

Syllabus by the Court.

The evidence authorizing a verdict finding the defendant guilty of unprovoked murder of the deceased by stabbing with a pair of scissors, and, none of the grounds of the motion for new trial showing any reason for the grant of a new trial, the judge did not err in overruling the motion.

Chas W. Anderson, of Atlanta, for plaintiff in error.

John A Boykin, Sol. Gen., J. Walter Le Craw, and Quincy O. Arnold all of Atlanta,

p>Page and M. J. Yeomans, Atty. Gen., and O. H. Dukes Asst. Atty. Gen., for the State.

RUSSELL Chief Justice.

Ralph Benton was indicted for the murder of John Jinks. Upon his trial he was found guilty, without a recommendation. The evidence for the State was to the effect that the defendant and the deceased were both inmates of the chain gang of Fulton county; that a group of prisoners, including the defendant and the deceased, were engaged in a game of 'craps' played with dice; that defendant and deceased had some words concerning the playing of the game, and defendant tried to get deceased to desist from playing, as he wanted to see him apart from the others, but deceased kept on playing; that defendant then went to the back of the building wherein they were playing; that when he came back the deceased had stopped playing and was standing near the stove; that defendant called deceased around the stove; that one of the guards told defendant that they were not going to have an argument or fuss in there; that defendant (who at the time was one of the convict barbers) reached over this guard and stabbed deceased with a pair of scissors, at which time deceased was standing up; and that deceased died from such stab wounds. In his statement to the jury the defendant claimed that the deceased cursed him, and was trying to stab him with a weapon fashioned out of a spoon or other metal utensil; that he then stabbed deceased to prevent deceased from inflicting a mortal wound upon him; and that he endeavored to prevent the difficulty with deceased by backing off and trying to talk him out of it; but that deceased kept coming on and cursing him. He moved for a new trial on several grounds which are dealt with hereinafter. To the overruling of his motion he excepted.

1. In explaining to the jury what constituted malice in the commission of murder, the judge stated, as illustrative thereof, that the jury could find express malice from the existence of such external facts as old grudges, lying in wait, or previous difficulties, without instructing the jury, in connection therewith, to look to the proof in the case and see if there was any evidence of previous grudges, lying in wait, etc. Under the rulings of this court in Wilson v. State, 33 Ga. 207(3), 218; Henderson v. State, 120 Ga. 504, 48 S.E. 167; Johnson v. State, 139 Ga. 92, 76 S.E. 859, and Hamilton v. State, 169 Ga. 613, 618, 151 S.E. 17, where 'exception is taken to an illustration used by the court, explanatory of a legal principle, this court will not narrowly scrutinize the illustration if satisfied that, whether right or wrong, it was not calculated to mislead, and did not in fact mislead, the jury.' The illustration here used did not tend to mislead, inflame, or prejudice the jury against he accused. It falls within the ruling stated above, and does not require the grant of a new trial.

2. The court did not err, under the facts of this case, in instructing the jury that 'the law presumes every homicide to be malicious until the contrary appears from the circumstances of alleviation, or excuse, or justification; and it is incumbent upon the defendant to make out such circumstances to the satisfaction of the minds of the jury, unless it appears from the evidence produced against him.' The evidence for the State tended to show an intentional killing by the defendant, without circumstances of alleviation, excuse, or justification, and the charge is not cause for reversal. See Mann v. State, 124 Ga. 760, 761, 53 S.E. 324, 4 L.R.A., N.S., 934; Gaillard v. State, 149 Ga. 190, 99 S.E. 629; Hooks v. State, 152 Ga. 403, 404, 110 S.E. 300.

3. There is no merit in the complaint of the court's failure to define to the jury involuntary manslaughter. There was no request so to charge. Involuntary manslaughter was not involved under the evidence. It was not even presented by the defendant's statement. He was either guilty of an unprovoked murder by the use of a deadly weapon, or he acted in defense of his life in stabbing the deceased. See Higgins v. State, 172 Ga. 221(3), 157 S.E. 643.

4. It is urged that a new trial is demanded, because the court omitted to instruct the jury as to the rules of law laid down in the Code,§§ 26-1014, 26-1016, 26-1017. When considered in connection with the charge as a whole, such principles of law embodied in those sections as were applicable under the facts of this case were sufficiently covered by the court in the instructions to the jury. There was no request to give to the jury the principles embodied in said sections. Section 26-1016 was clearly not applicable under the facts surrounding the killing in this case.

5. The defendant requested the court to charge the jury that 'Mutual combat may be shown by the statement of the defendant, or by an effort of the accused and the deceased to fight, or where one or more blows were struck.' This request was not wholly accurate. While it is true that mutual combat may appear from the statement of the defendant alone, in which event the principle should be given in charge, where duly requested; and while mutual combat may exist though only one blow is struck, yet there must always have been a mutual intention upon the...