Dupre v. State

• Decision Date: 13 July 1922
• Docket Number: 3180.
• Parties: DUPRE v. STATE.
• Court: Georgia Supreme Court

113 S.E. 428

153 Ga. 798

DUPRE v. STATE.

No. 3180.

Supreme Court of Georgia

July 13, 1922

Syllabus by the Court.

The defendant on conviction filed a motion for a new trial, four grounds of which were based on alleged newly discovered evidence as to prejudice and bias of named jurors. Movant contends that the affidavits attached to the counter showing cannot be considered by this court, because the same were not filed until three days after the motion was overruled, and because the same had never been made a part of the record nor attached to the motion for a new trial, nor made a part of the brief of evidence or the bill of exceptions. The case being for decision by a full bench of six Justices, who are evenly divided in opinion on the question as to whether the court could consider the answer of the solicitor general together with the affidavits attached as exhibits, three of whom, Fish, C.J., Beck, P.J., and Atkinson, J., being of the opinion that the same could not be legally considered, and three of whom, Hill, Gilbert and Hines, JJ., being of the contrary opinion, and holding that when considered no abuse of discretion appears in the judgment overruling the motion for a new trial, the judgment of the lower court on this point stands affirmed by operation of law.

There was an additional counter showing by means of having witnesses summoned before the judge presiding in the criminal division of Fulton superior court, where they were examined under oath, and their evidence was by order of such judge made a part of the record, ordered filed, and was so filed and appears in this record as specified in the bill of exceptions. At the hearing upon the motion for new trial no objection was offered to the introduction of this testimony. No question is presented for decision as to the consideration of this evidence.

The court did not err in the following charge to the jury "If a man makes up his mind to kill another unlawfully, and executes the intention, then that is a case of express malice connected with the killing, and that is a manifest case of murder."

Error is assigned on the following charge to the jury: "A reasonable doubt, of course, is a doubt that has arisen or grown out of the consideration of the evidence in the case. If the evidence, upon a fair and full consideration, leaves in the minds of the jury no reasonable doubt, then the evidence is sufficient to authorize a conviction. If the evidence satisfies your minds to reasonable and moral certainty, the evidence is sufficient." The criticism is that this charge left out of consideration the defendant's statement, and in effect instructed the jury that the reasonable doubt must grow out of the evidence alone or the lack of evidence. The charge is not subject to the criticism made, and no error is shown.

Error is assigned on the following charge to the jury: "The definition of voluntary manslaughter is an intentional killing, upon a sudden heat of passion; that is, if the passion, the existing of the passion, may be or is caused by some actual assault upon the person killing, or an attempt to commit a personal injury upon the person killing, or other equivalent circumstances sufficient, in the opinion of the jury, to justify the excitement of passion and to exclude all idea of malice." The criticism is that the charge was not an accurate definition of the offense of voluntary manslaughter, and that it was not in the language of the statute defining that offense, and that the language used was confusing and not easily understood by the lay mind. The charge contained the substance of the definition of voluntary manslaughter as stated in the Penal Code 1910 (section 65), and no error is shown.

Error is assigned on the following charge: "If the killing was not done with a motive of that sort, but was done purely by reason of passion excited in him on account of disproportionate violence, or the unreasonable violence, under the circumstances employed by the arresting officer, or the deceased in this case, then you may consider the killing as being reduced to voluntary manslaughter." The criticism is that this charge was error, because the language was inaccurate, and because it precluded the jury from giving due weight and consideration to material circumstances in the case, the effect of which, in their minds, might have been to reduce the crime from murder to voluntary manslaughter. It is not pointed out in what respect the language is inaccurate, nor is there any statement of what material circumstances were excluded from the consideration of the jury. Therefore no error is shown in this ground of the motion.

Movant complains that the court erred in refusing a written request, duly presented, to give in charge to the jury the following: "Manslaughter is the unlawful killing of a human creature, without malice either express or implied, and without any mixture of deliberation whatever, which may be voluntary, upon a sudden heat of passion, or involuntary, in the commission of an unlawful act, or a lawful act without due caution and circumspection." Under our view of the evidence, the refusal to charge the jury as requested in this ground was not error. The court did submit the issue of voluntary manslaughter under instructions which were fair and legal, embodying in substance the principles requested; though that issue was not involved under the evidence or under the statement of the defendant.

Movant complains that the court erred in refusing a written request, duly presented, to give in charge the following: "If you believe from the evidence that just prior to the alleged shooting of Irby C. Walker, deceased, by the defendant, that the defendant had committed a felony in the presence of the deceased, and was attempting to escape from the place of its commission, the deceased had a right to arrest the defendant, either with or without a warrant, and if you believe from the evidence that the deceased did attempt to arrest the defendant, and that the defendant, in order to prevent being arrested, shot and killed the deceased, he would be guilty of murder. But if you believe that the deceased assaulted the defendant, or made an attempt to inflict a serious personal injury upon him, or if you believe that the conduct of the deceased towards the defendant, and the manner in which he seized him, if he did seize him, was such as to lead the defendant to believe that the deceased intended then and there to inflict a serious personal injury upon him instead of to arrest him, and the defendant shot the deceased under those circumstances, and without malice, he would be guilty of voluntary manslaughter." The court properly refused this request; the same not being applicable under the evidence or the statement of the accused.

Movant complains that the court erred in refusing a written request, duly presented, to charge the following: "If the evidence adduced to establish the homicide presents two conflicting theories, one of malice and the other the absence of malice, it becomes a question of fact to be decided by the jury as to which aspect of the evidence is the real truth of the occurrence; and if you believe beyond a reasonable doubt that the defendant is guilty of either murder or of voluntary manslaughter, but at the same time have a reasonable doubt as to which of these offenses he is guilty of, it would then be your duty to give him the benefit of the doubt and find him guilty of the lower grade of the offense, to wit, voluntary manslaughter." The court submitted the issues of murder and voluntary manslaughter in language more favorable to the accused than the evidence required, and there was no error in refusing this request.

Movant complains that the court erred in giving the following charge to the jury: "You hear the evidence; you are citizens of this county; the jury is supposed to know what ought to be done with reference to fixing the punishment; the court has no suggestion to make to you with reference to that; you may consider what the object of punishment is, consider all the facts and circumstances of the case, circumstances of mitigation or palliation, or circumstances of aggravation, anything that you think ought to be considered as bearing upon the question of what punishment you should fix." The case being for decision by a full bench of six Justices, who are evenly divided in opinion on the question as to whether the foregoing charge was error, three of whom, Fish, C.J., and Atkinson and Hines, JJ., being of the opinion that the charge was error, and three of whom, Beck, P.J., and Hill and Gilbert, JJ., being of the contrary opinion, the judgment of the court below refusing a new trial on this issue stands affirmed by operation of law.

The evidence amply authorized the verdict.

Additional Syllabus by Editorial Staff.

Under Pen. Code 1910, § 921, any person who saw defendant snatch a valuable diamond ring and attempt to escape had a legal right to arrest him and to use such force as was necessary to effect his arrest.

Error from Superior Court, Fulton County; H. A. Mathews, Judge.

F. B. Dupre was convicted of murder, and he brings error. Affirmed.

H. A. Allen, L. H. Foster, and W. I. Heyward, all of Atlanta, for plaintiff in error.

John A. Boykin, Sol. Gen., of Atlanta, Geo. M. Napier, Atty. Gen., Seward M. Smith, Asst. Atty. Gen., and E. A. Stephens, of Atlanta, for the State.

GILBERT J.

The ninth, tenth, eleventh, and twelfth grounds of the amended motion for a new trial complain that four of the jurors who served in the trial of the case and who returned a verdict of guilty against the defendant were not fair and impartial, and that they entertained a prejudice and bias and had expressed a strong and decided opinion about ...