Drysdale v. State

• Decision Date: 25 November 1889
• Citation: 10 S.E. 358,83 Ga. 744
• Parties: DRYSDALE v. STATE.
• Court: Georgia Supreme Court

10 S.E. 358

83 Ga. 744

DRYSDALE v. STATE.

Supreme Court of Georgia

November 25, 1889

Syllabus by the Court.

1. Where the verdict is correct if the testimony of the prosecutor was true, and where the jury must have believed it true in order to render the verdict, the result coincides with the substantial merits of the case.

2. A husband may attack for intimacy with his wife in his presence, raising a well-founded belief that the criminal act is just over or about to begin, and the adulterer, though in danger, has no right to defend himself by using a deadly weapon.

Error from superior court, Richmond county; RONEY, Judge.

W. T Gary and R. L. Pierce, for plaintiff in error.

Boykin Wright, Sol. Gen., for the State.

BLECKLEY C.J.

1. If the evidence of the prosecutor was true, there can be no possible doubt of the correctness of the verdict; and that the jury believed it true is equally certain, from the fact that they rendered a verdict based upon it. This disposes of the case upon its actual merits. None of the errors of the court complained of could have misled the jury if the prosecutor was a truthful witness, and, with or without errors, the jury could not have reached a verdict of guilty had they doubted the truth of his testimony.

2. The charge of the court complained of in the sixth ground of the motion for a new trial must be read in the light of that testimony, this charge being: "If you believe the prosecutor caught the defendant and his wife under such circumstances as led him to believe that they had just been in the act of cohabitation, or were about to cohabit, with each other, then the prosecutor had the right to protect his marital rights; and if in pursuance of such an object he assaulted the defendant, and the defendant shot at him with the intention to kill him, then the defendant is guilty of assault with intent to murder." There was no evidence save that of the prosecutor, which tended to show that the defendant and the prosecutor's wife were caught under circumstances calculated to induce the belief that they had just been in the act of cohabitation or were about to cohabit. If such circumstances existed, they were undoubtedly brought about either by the guilty acts of the defendant, or by acts on his part done without just cause or excuse, and which were adapted to produce the belief that he was engaged at that time either in terminating or in beginning criminal...