Cress v. State
| Decision Date | 07 November 1906 |
| Parties | CRESS . v. STATE. |
| Court | Georgia Supreme Court |
Where, in a trial of one under an indictment charging him with the offense of murder, the evidence discloses facts and circumstances which make it proper that the court should charge the jury the law of murder, of voluntary manslaughter, and of justifiable homicide, it was error for the court to charge unqualifiedly that, "if the weapon used was one which in its nature was not likely to produce death, the jury might infer a want of malice, and in such a case it would be voluntary manslaughter." Such a charge being open to the criticism that it tended to exclude from the consideration of the jury the defense of justifiable homicide. And the harmful effect of such a charge was not removed when the court, in a subsequent part of his general charge, gave to the jury instructions embracing the law of justifiable homicide. Such instructions were in conflict with the charge quoted, but were not explanatory nor qualificative thereof.
An error beneficial to a party affords him no ground for complaint.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 15, Criminal Law, § 3088.]
Where the trial judge has once, in his general charge, fully and correctly stated the law of reasonable doubt, it is not necessary that he should repeat his instructions upon this subject in connection with each new proposition laid down.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 1922, 1991.]
The failure of the court to charge the jury upon the subject of the impeachment of witnesses does not constitute reversible error in the absence of a request in writing for such charge.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1996.]
(Syllabus by the Court.)
Error from Superior Court, Walker County; Moses Wright, Judge.
Tom Cress was convicted of murder, and brings error. Reversed.
Cress was indicted for the murder of Kane, and found guilty of voluntary manslaughter, and he assigns error upon the refusal of the court to grant him a new trial. The state's evidence shows that a party of soldiers from Fort Oglethorpe were assembled at a club-room run by Beacon, where all had been drinking. Cress and two others, who were together, had some difficulty with the bartender, and went outside, telling the bartender that if he "wanted any part of them, he could get it." The bartender went to Kane and said. "Kane, I want you to see fair play;" and Kane said, "Certainly, " and he and one other immediately went out, and got into a difficulty with Cress, in which difficulty Kane struck Cress a hard blow in the face. Kane returned to the club, but Cress did not return. Later in the evening Kane, together with several others, left the club and started back to the quarters, when they passed Cress and Jones sitting on the steps of Freihn's clubhouse about 50 yards from Beacon's. Kane stopped near by for some purpose, and state's witnesses passed on and waited for him. After waiting some time, witnesses went back and found Kane staggering around unconscious from a blow on the head. Cress and Jones had disappeared. Kane's skull was fractured in two places by a violent blow. A stone could have caused the wound. Kane died next day without having regained consciousness. There was no further proof of the kind of weapon used. A witness for the defendant stated that, after the first difficulty at Beacon's, Cress and witness went back to the quarters, but after a while returned to Freihn's place and sat down on the steps. While they were sitting there, Kane and several others passed by, but Kane returned to where they were sitting and said, "What in the hell are you doing there?" and struck witness on the face. Cress told him not to do that, and then Kane struck Cress and threw his hand to his hip pocket and said, "Damn you, I have got you." Cress picked up a rock and threw and hit Kane on the head. The evidence for both the state and the defendant was voluminous, but the foregoing contains the substance of that which bears upon the questions made by the motion for a new trial.
John W. Bale and Chas. R...
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