Butler v. State

• Decision Date: 09 October 1893
• Citation: 19 S.E. 51,92 Ga. 601
• Parties: BUTLER v. STATE.
• Court: Georgia Supreme Court

19 S.E. 51

92 Ga. 601

BUTLER v. STATE.

Supreme Court of Georgia

October 9, 1893

Syllabus by the Court.

1. Where two are tried jointly for a capital offense, and neither waives his peremptory challenges, the state is entitled to half of the whole number which the law allows to both. Code, § 4643.

2. There was no substantial error in charging the jury, touching reasonable doubt, as follows: "Defendants, in all criminal cases, are presumed to be innocent, until the contrary appears, and it is your duty to give the defendants the benefit of this presumption; and this presumption follows the defendants all through the trial, and until the proofs satisfy the minds of the jury of the guilt of the accused beyond a reasonable doubt, --that is, a moral certainty. That does not mean that the state should demonstrate to a mathematical certainty the defendant's guilt. That would scarcely be possible, in any human trial. It means that the evidence must be of such a character as to leave the minds of the jury settled as to the conviction of the defendant's guilt. It must not leave the minds of the jury wavering unsettled, hesitating, or unsatisfied, because, if it does the law says the defendant is entitled to that doubt, and to an acquittal. It does not, on the other hand, and mean a vague conjectural doubt; the doubt of a 'crank;' a doubt conjured up in the mind of any man. It means a doubt that grows out of the evidence in the case, or the want of evidence. It means such a doubt as a juror would hesitate to act on in the most important business affairs of his own, in the ordinary walks of life."

3. The homicide having been committed by shooting with a pistol and the plaintiff in error being the person who fired it, there was, as against him, no error in charging thus: "If the state has shown to you by evidence, beyond a reasonable doubt, that either of these defendants killed the deceased and that the other was present, aiding and abetting it, then the law presumes that the killing was murder; and it is then incumbent on the defendant to show that such killing was not murder, --a lesser grade of homicide,--or was justifiable;" the court having also charged that the mitigating facts would be available, if shown by the state.

4. If the accused shot at his assailant in consequence of an assault which he did not provoke, and killed another person, by bad shooting, the killing would be manslaughter, if the assault was not such as would have justified killing the assailant. If it were such, it would be homicide by misadventure.

5. In view of the testimony, and the charge of the court as given, the charge was incomplete, without adding thereto, as a part of the law of the case, irrespective of any request for instruction, something in substance to the following effect: "If the assault upon the accused was made with a weapon likely to produce death, and in a manner apparently dangerous of life, the fact that the accused provoked the assault by opprobrious words would not put him in the wrong for resisting it, so far as was necessary to his defense; and a seeming necessity, if acted on in good faith, would be equivalent to a real necessity."

6. Under the evidence in the record, the law of mutual combat was not applicable to the facts of the case, and the court erred in charging the jury on that subject.

Error from superior court, Morgan county; C. L. Bartlett, Judge.

Ambrose Butler was convicted of manslaughter, and brings error. Reversed.

Calvin George and H. T. Lewis, for plaintiff in error.

H. G. Lewis, Sol. Gen., for the State.

SIMMONS J.

1. Ambrose and Charles Butler were indicted and tried jointly for murder. The court below, over objection by counsel for the accused, permitted counsel for the state to challenge peremptorily 20 of the jurors impaneled to try the case, holding that each defendant was entitled to 20 peremptory challenges, and the state to half of the whole number allowed to both. This ruling is complained of in the motion for a new trial. Section 4643 of the Code declares that "every person indicted for a crime or offense which may subject him or her, on conviction, to death or four years' imprisonment, or longer, in the penitentiary, may peremptorily challenge twenty of the jurors impaneled to try him or her;" and this court has held that, by going to trial jointly, the defendants do not waive any right of peremptory challenge, but each is entitled to his full statutory allowance. Cruce v. State, 59 Ga. 83. The same section of the Code declares, further, that "the state shall be allowed one-half the number of peremptory challenges allowed to the prisoner." It does not appear that either of these defendants waived his full statutory allowance. The court, therefore, did not err in the number allowed counsel for the state.

2. It is complained that the court erred in charging that a reasonable doubt is "such a doubt as a juror would hesitate to act on in the most important business affairs of his own, in the ordinary walks of life." This portion of the charge was given connection with other instructions on the same subject, which are set out in the second headnote to this opinion; and, taken as a whole, we think the charge on this subject is free from substantial error.

3. The homicide having been committed by shooting with a pistol, and the plaintiff in error being the person who fired it, there was, as against him, no...