Early v. State

• Decision Date: 18 April 1914
• Docket Number: (No. 5482.)
• Parties: EARLY. v. STATE.
• Court: Georgia Court of Appeals

(14 Ga.App. 467)

81 S.E. 385

EARLY.

v.STATE.

(No. 5482.)

Court of Appeals of Georgia.

April 18, 1914.

(Syllabus by Editorial Staff.)

1. Homicide (§ 166*)—Assault with Intent to Kill—Evidence.

Where accused assaulted the prosecuting witness wljile he was conversing with accused's inamorata, evidence that some time before the assault accused told the prosecuting witness that, if he did not keep away from his girl's house, he would kill him, is admissible on the question of motive.

[Ed. Note.—For other cases, see Homicide, Cent. Dig. §§ 320-331; Dec. Dig. § 166.*]

2. Criminal Law (§ 823*)—Trial—Instruction.

The court charged that, if the evidence satisfied the jury to a reasonable and moral certainty of accused's guilt, he should be convicted, but that they could not go outside of the evidence, though, if upon a consideration of the evidence or want of evidence they should entertain a reasonable doubt, accused should be acquitted. In other portions of the charge the jury were informed as to the weight they might give to accused's statement made, not under oath, and that, if they should have any doubt as to accused's guilt, they should acquit. Held that, in view of the charge as a whole, the failure to instruct that a reasonable doubt might arise from accused's statement was not erroneous.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 1992-1995, 3158; Dec. Dig. § 823.*]

3. Homicide (§ 96*)—Trial—Defenses.

An assault with a razor cannot be justified on the ground of reasonable fear, unless accused acted under a fear sufficient, under the circumstances, to excite the fears of a reasonable man.

LEd. Note.—For other cases, see Homicide, Cent. Dig. §§ 124-127; Dec. Dig. § 90.*]

4. Criminal Law (§ 1059*)—Presentation of Grounds of Review in Court Below— Exceptions—Sufficiency.

An exception to a charge, in a homicide case, which merely declared that it was erroneous because not correctly stating the law when express malice is shown, is too vague for consideration.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 2671; Dec. Dig. § 1059.*]

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

Irving Early was convicted of assault with intent to murder, and he brings error. Affirmed.

Feagin & Hancock, of Macon, for plaintiff in error.

Jno. P. Ross, Sol. Gen., of Macon, for the State.

WADE, J. The defendant was convicted of an assault with intent to murder. The evidence for the state showed that he saw one Henry Slater in apparently earnest conversation with a married woman, known as Ethel Davis, who sailed under a name different from her husband's and with whom the defendant's relations appear to have been altogether too friendly, and prompted by the "green-eyed monster" of jealousy, and seemingly enraged by the failure of Slater to regard a warning which he had given some time before that he would kill Slater if he ever caught him at his "girl's" house again, he assaulted Slater with an open razor, and carved up his person extensively and without entire regard for his anatomical structure or future physical pulchritude. Slater was cut from a point about an inch below the right ear, around the neck, to about half an inch beyond the middle of the back of the neck, and also on the left side of the head from the top to the lobe of the ear, and there were several other equally dangerous cuts on or about the back of the head and neck. The cutting was done at night, on the open street, in the dark, and, according to the state's witness, was wholly unprovoked; the sole cause being the fact that Slater had stopped to exchange a remark with the woman. There was testimony tending to show that the defendant acted in self-defense, and not as the aggressor; but the jury saw fit to reject this testimony and accept the testimony in behalf of the state instead.

The general grounds of the motion for anew trial are without merit, since the evidence was ample to sustain the verdict.

The defendant complains, in the first ground of his amended motion, because the court admitted the testimony of a witness who swore that before the assault was committed the defendant told him that, if he ever caught Slater at his "girl's" house again, he was going to kill him. This was about a month or two before the cutting, and the witness told Slater what the defendant said. The defendant was talking about the house of Ethel Davis. This evidence appears, from the recitals in the amended motion, to have been objected to on the ground that the same was irrelevant and immaterial. The evidence, in our opinion, was admissible, since it threw light on the state of feeling entertained by the defendant towards Slater, and helped to explain his conduct in making the assault by furnishing the motive therefor.

The defendant complains because the court charged the jury as follows: "If the evidence satisfies your minds to a reasonable and moral certainty of the guilt of the defendant, and there remains no reasonable doubt in your minds as to his guilt, it would be your duty to convict him." And also because the court charged the jury that they could not go outside of the "evidence" in trying the case, either for the purpose of finding the defendant guilty or for the purpose of raising a doubt; "but if, upon a consideration of the evidence in the case, either on account of the want of evidence, or insufficiency of evidence, or the evidence itself, there should arise in your minds a reasonable doubt as to his guilt, as to the guilt of the defendant, it is your...