Biggs v. The State Of Ga.

CourtSupreme Court of Georgia
Writing for the CourtLumpkin, J
Citation29 Ga. 723
PartiesJedd W. Biggs, plaintiff in error. vs. The State of Georgia,defendant in error.
Decision Date31 January 1860

29 Ga. 723

Jedd W. Biggs, plaintiff in error. vs. The State of Georgia, defendant in error.

Supreme Court of the State of Georgia

JANUARY TERM, 1860.


[29 Ga. 724]

Indictment, in Richmond Superior Court. Tried before Judge Holt, at October Term, 1859.

The plaintiff in error was indicted in the court below, for an assault with intent to murder. There was also a count for shooting at another, not in his own defence, contrary to the statute in such cases made and provided.

The cause was submitted, under the testimony and charge of the court, to the jury, who found the defendant guilty under the second count in the indictment, with a recommendation to the mercy of the court. Whereupon, defendant's counsel moved for a new trial upon the following grounds:

1 st. Because the verdict is contrary to the preponderance of the evidence.

2d. Because the verdict is contrary to law.

3d. Because the court decided that Mrs. Biggs was an incompetent witness.

4th. Because the court ruled out the evidence of George A. Oates, as to the general character of Mrs. Biggs for virtue and chasity.

5th. Because the court charged the.jury, that if a man kill another, that other being at the time in the act of adultery, with the slayer's wife, the killing would be voluntary manslaughter and not justifiable homicide.

6th. Because the court held, that shooting at the adulterer under such circumstances, would be a violation of the Act of 1856 on that subject; but that unless an act of criminal

[29 Ga. 725]

connection be shown in this case, these remarks had no application to the case, and are principles not necessary to be considered by the jury.

7th. Because the court charged the jury, that under no circumstances of aggravation, however gross and direct, would a man be justifiable in taking the life of another, who attempts the seduction of his wife.

8th. Because the court charged the jury, that if a man shoot at another, under such circumstances, and fail to kill, he is guilty of assault with intent to murder, if there be malice; or, shooting at another, under the Act of 1856, if there be no malice.

9th. Because the court charged the jury, that although the shooting at another, might, if it resulted in death, be justifiable homicide, yet if death did not ensue, it would be a crime under the act of 1856, unless it were done in self-defence.

10th. Because the court charged the jury, that the only defence to the crime of shooting at another, is, that it was done in the prisoner's own defence.

11th. Because the court charged the jury, that whatever may have occurred on the night previous to the difficulty at the breakfast table, it could not amount to a justification or excuse for the act of shooting on the morning after that difficulty; and that if the prisoner commenced the assault at the breakfast table by laying violent hands upon Parish, and by first shooting at him, even the plea of self-defence is taken away from him.

12th. Because the verdict was against law, and strongly and decidedly against the weight of evidence.

All of which said charges, rulings and decisions, in said motion set forth, the court did make.

In the progress of the trial, and in the argument of the case before the jury, the defendant's counsel relied for his defence, not only on the twelfth, thirteenth and fourteenth sections of the fourth division of the Penal Code, in relation to

[29 Ga. 726]

self-defence, but also, and mainly upon the sixteenth section of the fourth division of the Penal Code, insisting that this case presented one of those instances which stand upon the same footing of reason and justice, as those enumerated in the previous sections of the same division; and if death had resulted from the shooting, it would have been justifiable homicide, and that as death did not ensue, the shooting was not a crime, but was justifiable.

At the said term, to wit, on the 26th day of November, 1859, the court overruled said motion for a new trial, upon all the grounds therein set forth; to which said decision, the said defendant by his counsel excepted, and now assigns the same as error.

And now, within thirty days from the close of said term of the court, at which said decision was rendered, tenders this bill of exceptions, and prays that the same be certified according to the statute in such cases made and provided.

Millers & Jackson, for plaintiff in error.

Attorney-General, contra.

By the Court.— Lumpkin, J., delivering the opinion.

Ought the testimony of George A. Oates, as to the general character of Mrs. Biggs for virtue and chastity, to have been rejected?

Her reputation in this respect had been implicated both by the conduct and evidence of Eleazer M. Parish. And if she was the woman he took her to be, the conduct of her husband would have been less justifiable in resorting to the means he did, to rescue and protect her from insult and importunity. We hold, therefore, that the proof should have been received.

The 9th charge given by the presiding judge to the jury, was in these words: "That although the shooting at

[29 Ga. 727]

another, might, if it resulted in death, be justifiable homicide, yet if death did not ensue, it would be a crime, under the Act of 1856, unless it were done in self-defence."

Such we concede is the letter of the 3d section of the Act of 1856. It provides, that from and after its passage, that "any person who shall be guilty of the offence of shooting at another, or at any slave or free person of color, except in his own defence, with a gun, pistol, or other instrument of the like kind, shall, on conviction, be punished by a fine not exceeding one thousand dollars, and imprisoned not less than twelve months, or confinement in the penitentiary at the discretion of the court." Pamphlet Acts, 1855-56, p. 265.

By the Penal Code, it is...

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25 practice notes
  • State v. Flory, 1538
    • United States
    • United States State Supreme Court of Wyoming
    • April 3, 1929
    ...129, 10 A. L. R. 462; McDaniel v. State, 90 Tex. Crim. 636, 237 S.W. 292 and cases cited; Ferguson v. State, 49 Ind. 33; Biggs v. State, 29 Ga. 723, 76 Am. Dec. 630; Maher v. People, 10 Mich. 212, 81 Am. Dec. 781; People v. Barberi, 149 N.Y. 256, 43 N.E. 635, 52 Am. St. Rep. 717; State v. T......
  • Gossett v. State
    • United States
    • Supreme Court of Georgia
    • June 17, 1905
    ...State, 86 Ga. 108, 12 S. E. 205; Perry v. State, 102 Ga. 365, 30 S. E. 903; Elliot v. State, 46 Ga. 159. While the case of Biggs v. State, 29 Ga. 723, 76 Am. Dec. 630. contains many strong and forcible expressions, it has not been considered by the court as conflicting with later rulings. W......
  • Coart v. State, (No. 3345.)
    • United States
    • Supreme Court of Georgia
    • September 24, 1923
    ...that in support of that contention he read before the court and jury a part of the opinion in the case of Biggs v. State of Georgia, 29 Ga. 723, 70 Am. Dec. 030, and I further certify that while J. Render Terrell, Esq., and George G. Palmer, Esq., who made arguments before the court and jur......
  • State v. Greenlee, No. 3184.
    • United States
    • New Mexico Supreme Court of New Mexico
    • March 15, 1928
    ...somewhat similar statute in Utah, referred to in State v. Botha, 27 Utah, 289, 75 P. 731, and to an early Georgia decision (Biggs v. State, 29 Ga. 723, 76 Am. Dec. 630), and upon these authorities [269 P. 333] it is urged that the purpose and effect of statutes such as ours are to justify h......
  • Request a trial to view additional results
25 cases
  • State v. Flory, 1538
    • United States
    • United States State Supreme Court of Wyoming
    • April 3, 1929
    ...129, 10 A. L. R. 462; McDaniel v. State, 90 Tex. Crim. 636, 237 S.W. 292 and cases cited; Ferguson v. State, 49 Ind. 33; Biggs v. State, 29 Ga. 723, 76 Am. Dec. 630; Maher v. People, 10 Mich. 212, 81 Am. Dec. 781; People v. Barberi, 149 N.Y. 256, 43 N.E. 635, 52 Am. St. Rep. 717; State v. T......
  • Gossett v. State
    • United States
    • Supreme Court of Georgia
    • June 17, 1905
    ...State, 86 Ga. 108, 12 S. E. 205; Perry v. State, 102 Ga. 365, 30 S. E. 903; Elliot v. State, 46 Ga. 159. While the case of Biggs v. State, 29 Ga. 723, 76 Am. Dec. 630. contains many strong and forcible expressions, it has not been considered by the court as conflicting with later rulings. W......
  • Coart v. State, (No. 3345.)
    • United States
    • Supreme Court of Georgia
    • September 24, 1923
    ...that in support of that contention he read before the court and jury a part of the opinion in the case of Biggs v. State of Georgia, 29 Ga. 723, 70 Am. Dec. 030, and I further certify that while J. Render Terrell, Esq., and George G. Palmer, Esq., who made arguments before the court and jur......
  • State v. Greenlee, No. 3184.
    • United States
    • New Mexico Supreme Court of New Mexico
    • March 15, 1928
    ...somewhat similar statute in Utah, referred to in State v. Botha, 27 Utah, 289, 75 P. 731, and to an early Georgia decision (Biggs v. State, 29 Ga. 723, 76 Am. Dec. 630), and upon these authorities [269 P. 333] it is urged that the purpose and effect of statutes such as ours are to justify h......
  • Request a trial to view additional results

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