Cumming v. State
| Decision Date | 19 October 1896 |
| Citation | 27 S.E. 177,99 Ga. 662 |
| Parties | CUMMING v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. When two or more persons are jointly tried for a felony, and each insists upon having the full number of peremptory challenges to jurors to which he would be entitled if tried alone, it is the duty of the judge, upon the request of the accused, made when the first juror is put upon them, to determine at once the total number of such challenges which will be allowed to the accused.
2. While provocation by words, threats, menaces, or contemptuous gestures shall in no case be sufficient to reduce a homicide below the grade of murder, when the killing is done, not because or on account of any fear in the mind of the slayer but solely for the purpose of resenting the provocation given, it is nevertheless true that threats, accompanied by menaces, though the latter do not amount to an actual assault, may, in some instances, be sufficient to arouse the fears of a reasonable man that his life is in danger, or that a felony is about to be perpetrated upon him. In all such cases the motive with which the slayer acted is for determination by the jury; and, if it be claimed that the homicide was committed, not in a spirit of revenge, but under the fears of a reasonable man, it is for the jury, and not for the judge, to decide whether or not the circumstances were sufficient to justify the existence of such fears.
(a) In the present case it was error to charge: "A fear growing out of, and only supported by, mere words, threats, menaces or contemptuous gestures, is not the fear which would justify or excuse another for committing a homicide."
3. The general charge, except as to the error above pointed out, was a fair submission of the law upon the issues involved; the requests to charge were sufficiently covered; and there was no error in rejecting evidence.
Error from superior court, Wilkinson county; J. C. Hart, Judge.
Dave Cumming was convicted of murder, and brings error. Reversed.
H. P Howard, Whitfield & Allen, and Roberts & Pottle, for plaintiff in error.
Anderson, Felder & Davis, H. G. Lewis, Sol. Gen., J. W. Lindsay, and J. M. Terrell, Atty. Gen., for the State.
Dave Cumming and two other persons were jointly indicted for murder. He was found guilty, and, his motion for a new trial being overruled, he excepted.
1. One of the grounds of the motion is that the court erred in refusing to rule, immediately after the first panel of the jury was put on the accused, that they were entitled to 60 strikes; that is to say, 20 strikes for each defendant. After the first juror on the panel had qualified, and had been put upon the accused, counsel for the accused informed the court that they would claim this number of strikes. Counsel for the state resisted this claim, and the court refused to rule on the proposition, stating that it was not the proper stage of the trial to rule on the question. Section 974 of the Penal Code declares that "every person indicted for a crime or offense which may subject him to death, or four years' imprisonment in the penitentiary, may peremptorily challenge twenty of the jurors impaneled to try him." And this court has held that, where persons jointly indicted for such an offense go to trial together, they do not waive any right of peremptory challenge, but each is entitled to his full statutory allowance. Cruce v. State, 59 Ga. 83. And see Butler v. State, 92 Ga. 601, 19 S.E. 51. In this case, therefore, the claim of the accused ought to have been allowed, and, the motion having been made when the first juror was put upon the accused, and an immediate ruling requested, the judge ought not to have postponed the determination of the question as he did. It may have been important for the accused, in determining as to what jurors they would accept or reject, to know at the outset how many strikes would be allowed them by the court.
2. It is complained that the court erred in charging that "a fear growing out of, and only supported by, mere words threats, menaces, or contemptuous gestures, is not the fear which would justify or excuse another for committing a homicide." The things here mentioned, it is true, will not avail the person killing when, in order to reduce the homicide to voluntary manslaughter, he sets up that killing was done in the excitement of passion, and because of provocation; for the Penal Code, in dealing with the defense (section 65), declares that "provocation by words, threats, menaces, or contemptuous gestures, shall in no case be sufficient to free the person killing from the guilt and crime of murder." But it is not the law that none of these things shall be sufficient to produce such a fear as will justify a killing. The question of what is sufficient to reduce the grade of the crime where a killing is prompted by passion is one thing, and the question of what is sufficient to excite the fears of a reasonable man that a felony is about to be committed upon him is another, and very different, thing. The Penal Code (section 71)...
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