Domingo v. State, 19281
| Decision Date | 09 April 1956 |
| Docket Number | No. 19281,19281 |
| Citation | 92 S.E.2d 520,212 Ga. 342 |
| Court | Georgia Supreme Court |
| Parties | Leon I. DOMINGO v. The STATE. |
Syllabus by the Court
1. Where, as here, the accused, having been directed by the deceased policeman of the City of Columbus to cease boisterous talk and argument with his female companion at night on the streets of Columbus, later--accompanied by two soldier friends--returns to the officer and requests an apology from this officer, and a personal encounter ensues resulting in the defendant shooting and killing the policeman, there is no semblance of mutual combat, and the court did not err in failing to charge thereon.
2. The correct charge on the law of justifiable homicide was not error in that it tended to confuse Code § 26-1012, relating to self-defense because of apparent necessity, with Code § 26-1014, relating to self-defense in cases of mutual combat.
3. The charge on voluntary manslaughter conforms with the law, and is not subject to the criticism that it mingles the law of defense of person and life with voluntary manslaughter, and thereby confuses the two phases of homicide.
4. The charge on flight, which was that, if the defendant fled because of a consciousness of guilt, 'flight then is a slight circumstance of the defendant's guilt,' but if it was due to some other cause, this principle does not apply, was misleading, prejudicial, and requires a reversal.
5. Having given the various forms of verdicts the jury might return, the court then said, In so charging reversible error was committed, in that the charge was incomplete, misleading, and might well have been prejudicial.
6. Counsel for the plaintiff in error expressly waives the general grounds, and no ruling is made thereon.
J. Walter Owens, Owen G. Roberts, Jr., Columbus, for plaintiff in error.
John Land, Sol. Gen., Columbus, Eugene Cook, Atty. Gen., Rubye G. Jackson, Atlanta, for defendant in error.
1. Headnotes 1, 2, 3, and 6 require no elaboration. In the following divisions of the opinion we will discuss the questions ruled on in headnotes 4 and 5.
2. Flight is a circumstance from which the jury may infer guilt. Smith v. State, 63 Ga. 168; Sewell v. State, 76 Ga. 836; Hudson v. State, 101 Ga. 520, 28 S.E. 1010; Barnett v. State, 136 Ga. 65, 70 S.E. 868; Kettles v. State, 145 Ga. 6, 88 S.E. 197. 'Whether a given fact is evidence or not is for the court, but whether it is slight, or what weight it should have, is for the jury.' Smith v. State, 63 Ga. 168(18), supra. In Hudson v. State, 101 Ga. 520, 523, 28 S.E. 1010, supra, the court charged the jury that evidence of flight was in law a circumstance to show guilt, but, says our law, it is only a slight circumstance. This court said it would have been better to have charged as was done in Smith v. State, 63 Ga. 168, supra, and Sewell v. State, 76 Ga. 836, supra, but went on to say: 'nevertheless we are not prepared to say that, as put by the court, there was any error.' It is plain that the court was clearly invading the exclusive province of the jury when it charged that evidence of flight was a slight circumstance. But its full harm is underlined in the present case where the charge further departed from the ruling in the Smith case by charging that flight when made because of consciousness of guilt is 'a slight circumstance of the defendant's guilt and you will so apply it and so consider it in this case.' Therefore, we hold that it constituted reversible error for the court to invade the exclusive province of the jury by charging that evidence of flight, if shown to have been due to a consciousness of guilt, is 'a slight circumstance of the defendant's guilt, and you will so apply it and so consider it in this case.' The weight of such evidence must be determined in all cases by the jury, uninfluenced by expressions of the court as to the weight to be given it.
3. Of course a charge must be considered as a whole, and no excerpt therefrom will be held erroneous if other portions of the charge...
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Collier v. State
...armed robbery. Division Five, infra. When viewed as a whole, the charge does not furnish any cause for a new trial. Domingo v. State, 212 Ga. 342, 92 S.E.2d 520 (1956). 5. The eighth enumeration of error contends that the trial court erred in charging the following: "I instruct you that mal......
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...with the entire charge was not confusing or misleading to the jury. Dickerson v. Harvey, 221 Ga. 606, 146 S.E.2d 310; Domingo v. State, 212 Ga. 342, 92 S.E.2d 520; Smith v. Davis, 203 Ga. 175, 45 S.E.2d 2. Appellants' next contention is that the verdict was brought about by a form of judici......