Dorsey v. State

• Decision Date: 04 April 1900
• Citation: 35 S.E. 651,110 Ga. 331
• Parties: DORSEY v. STATE.
• Court: Georgia Supreme Court

35 S.E. 651

110 Ga. 331

DORSEY v. STATE.

Supreme Court of Georgia

April 4, 1900

Syllabus by the Court.

1. Upon the trial of one charged with murder, it was erroneous to charge the jury as follows: "If you believe from the evidence in this case, beyond a reasonable doubt, that the defendant, *** at the time the fatal shot was fired, was placed in such situation as that, as a reasonable man, he believed that a felony was about to be perpetrated on him *** and that he acted under these fears at the time he shot then his act would be guiltless." Such charge is open to the objection that it might be understood as instructing the jury that the accused must prove the defense indicated "beyond a reasonable doubt."

2. There being no question but that the accused intentionally shot the deceased, at very close range, with a shotgun killing him almost instantly, a charge that, "where a homicide is proved (that is, a killing), the law presumes malice, and, unless the evidence should relieve the slayer, he would be guilty of murder," was substantially correct.

3. There being some evidence from which the jury could have found that the accused killed the deceased in mutual combat, begun and carried on in hot blood, it was proper to give in charge section 73 of the Penal Code; but it was erroneous for the judge to say to the jury in this connection: "I now read section 73 of the Penal Code, as applicable to this case. *** This, now, is especially applicable in a case of mutual combat,--mutual intent to fight,"--as such language amounted to, at least, an intimation of the judge's opinion on the facts of the case.

4. The charge quoted below was pertinent, and, in substance, sound: "If *** you believe the parties went together and met under circumstances showing mutual intent to fight,--to have a mutual combat,--and that they were armed and looking to that end, and that they had prepared weapons for that purpose, and met together, and one of them was quicker than the other, and by this means fires before the other could fire or did fire, that would still be a crime, and the jury would be authorized to find the killing murder." However, the jury should have been instructed in this connection, or elsewhere in the charge, upon the law of voluntary manslaughter as applicable to cases of mutual combat.

Error from superior court, White county; J. B. Estes, Judge.

W. J. Dorsey was convicted of murder, and brings error. Reversed.

I. L. Oakes, Geo. P. Erwin, and H. H. Dean, for plaintiff in error.

W. A. Charters, Sol. Gen., and J. M. Terrell, Atty. Gen., for the State.

FISH J.

W. J. Dorsey was convicted of murder, and sentenced to life imprisonment in the penitentiary. Upon the overruling of his motion for a new trial, he excepted.

1. One of the grounds of the motion for a new trial was that the court erred in charging the jury as follows: "If you believe from the evidence in this case, beyond a reasonable doubt, that the defendant, West Dorsey, at the time the fatal shot was fired, was placed in such situation as that, as a reasonable man, he believed that a felonious assault was about to be perpetrated on him or his child,--which would be the same thing--and that he acted under those fears at the time he shot, then his act would be guiltless; that is to say, the law would justify that act." This charge was manifestly erroneous, as it required the jury to believe, beyond a reasonable doubt, that the accused, at the time the fatal shot was fired, acted under the fears of a reasonable man that a felonious assault was about to be committed upon him, before they would be authorized to acquit. The law presumed that the accused was innocent, until his guilt was proven beyond a reasonable doubt; and, if the state submitted sufficient evidence to remove the presumption of innocence, the accused was required to establish his defense only to the reasonable satisfaction of the jury. If the evidence which he introduced, considered in connection with that for the state, was sufficient to raise a reasonable doubt of his guilt, he was entitled to an acquittal. Evidently the words "beyond a reasonable doubt" were inadvertently used in this connection by the learned judge.

2. Complaint is also made that the court erred in charging the jury that "when a homicide is proved (that is, a killing), the law presumes malice, and, unless the evidence should relieve the slayer, he would be guilty of murder." Applied to the undisputed facts of this case this charge was substantially correct. There was no question but that the accused intentionally shot the...