Delk v. State

• Decision Date: 15 November 1910
• Citation: 69 S.E. 541,135 Ga. 312
• Parties: DELK v. STATE.
• Court: Georgia Supreme Court

69 S.E. 541

135 Ga. 312

DELK v. STATE.

Supreme Court of Georgia

November 15, 1910

Syllabus by the Court.

If upon the trial of a person indicted for murder, the evidence introduced to establish the homicide presents two conflicting theories of fact, one based upon circumstances indicating malice, and the other upon warranted inferences which negative its existence, it becomes a question of fact, to be decided by the jury, as to which one of these inconsistent theories is correct. In such a case, it is proper to charge the jury that the law presumes every homicide to be malicious, until the contrary appears from circumstances of alleviation, or of excuse, or justification, and that it is incumbent on the accused to show such circumstances, unless they appear from the evidence produced against him.

(a) Under the evidence introduced by the state in the present case, a charge to the effect that, where the killing was shown, the burden was upon the party killing to show that he was justified under some rule of law, was too restricted excluding mitigation or alleviation, or that these might arise from the evidence introduced by the state.

It was not desirable, after charging that in all criminal cases the defendant has a right to make such statement as he may see fit to make in his own defense, that the statement is not under oath, and that the jury may give to it such weight and credit as they see fit, and may believe it in preference to the sworn testimony, or may disregard it entirely, the determination of what weight and credit to give to it being for the jury, to immediately add, in juxtaposition therewith that jurors have no right to captiously set aside and disregard the testimony of a witness, that it is their duty to believe a witness, unless he is impeached, or his testimony is set aside by some method known to the law, that the jury are to do their duty, whatever it may be, and that it is not a question of sentiment or sympathy, but of finding the truth of the case, under the evidence and rules of law given them in charge.

If a deadly weapon be used in the commission of a homicide, in the usual and natural manner in which such weapon would produce that result, such as intentionally shooting another with a gun, the presumption of an intention to kill would arise; but a weapon may be used in a manner not naturally calculated to produce death, and in such a case the question of intent to kill is one of fact. The charge of the court on this subject was inaccurate.

Error from Superior Court, Clinch County; T. A. Parker, Judge.

Bill Delk was convicted of murder, and he brings error. Reversed.

B. W Cornelius, W. T. Dickerson, and J. L. Sweat, for plaintiff in error.

J. H. Thomas, Sol. Gen., S. Burkhalter, and H. A. Hall, Atty. Gen., for the State.

LUMPKIN J.

Bill Delk was indicted for the murder of Christopher Vining. He was found guilty, and recommended to life imprisonment. He moved for a new trial, which was refused, and he excepted.

1. The law relating to the presumption of malice arising from a voluntary homicide, where the evidence adduced to establish the homicide does not negative the existence of malice, and of the burden on the prisoner to show circumstances of alleviation or justification, unless they appear from the evidence adduced against him, are thoroughly discussed in the case of Mann v. State., 124 Ga. 760, 53 S.E. 324, 4 L.R.A. (N. S.) 934. The charge in the present case on that subject was along the line there indicated, except that it omitted any reference to mitigation or alleviation, and also omitted the last qualifying clause stated, namely, unless such circumstances appear from the evidence produced against him. The testimony of the witnesses for the state was such that the charge should not have impliedly excluded the accused from relying on it. The court instructed the jury that, where the killing was shown, the burden was upon the party killing "to show that he was justified under some rule of law," thus throwing upon the defendant the burden of showing complete justification.

2. The court charged the jury as follows: "In all criminal cases the defendant has the right to make to the court and jury such statement as he may see fit to make in his own defense. That statement is not under oath, and the jury may give to it such weight and credit as they may see fit. They may believe it in preference to the sworn testimony in the case, or they may disregard it entirely. It is a matter for you to determine what weight and credit to give to the defendant's statement. Jurors have no right to captiously set aside and disregard a witness' testimony. It is their duty to believe a witness, unless that witness has been impeached, or his testimony set aside by some method known to the law. You are to do your duty, whatever it is. It is not a question of sentiment or sympathy. It is a question of finding the truth of this case and determining it, under the evidence and...