Gay v. State

• Court: Georgia Supreme Court
• Writing for the Court: COBB, J.
• Citation: Gay v. State, 111 Ga. 648, 36 S.E. 857 (Ga. 1900)
• Decision Date: 07 August 1900
• Parties: GAY v. STATE.

36 S.E. 857

111 Ga. 648

GAY v. STATE.

Supreme Court of Georgia

August 7, 1900

Syllabus by the Court.

1. While a judge is not bound to give in charge to the jury any proposition of law which has no foundation except the statement of the accused, he may, if he sees proper so to do base an instruction on the statement.

2. Under the sworn testimony in this case a verdict of murder would have been well warranted, but the statement of the accused authorized a charge on the law of voluntary manslaughter, but not on the law of involuntary manslaughter.

Error from superior court, Emanuel county; B. D. Evans, Judge.

A. A Gay was convicted of manslaughter, and brings error. Affirmed.

F. H Saffold, for plaintiff in error.

B. T. Rawlings, Sol. Gen., for the State.

COBB J.

The accused was tried on an indictment charging him with the offense of murder, and the jury returned a verdict finding him guilty of voluntary manslaughter.

The case is here upon a bill of exceptions assigning error upon the refusal of the judge to grant a motion for a new trial which had been filed by the accused.

1. "It is well settled that, in the absence of a proper and pertinent written request for instructions thereon, the court is not bound to give in charge the law of a theory of the case arising solely from the statement of the accused." Hardin v. State, 107 Ga. 718, 33 S.E. 700, and cases cited. While the judge is not bound to charge the law applicable to a theory of the case derived solely from the prisoner's statement, he has a right to do so. It is the duty of the judge to give to the jury appropriate instructions on every theory of the case presented by the evidence, and it is the best practice to give such instructions on every phase of the case presented by the prisoner's statement, though, as above stated, the failure to do so, in the absence of a proper request, will not be held to be error. While instructions on a theory of the case as derived from the statement are not required by strict law, few cases, if any, can arise where such instructions would not be dictated by every sense of justice and fairness. A careful examination of the prisoner's statement in the present case satisfies us that, if the jury credited the same, a verdict for voluntary manslaughter was authorized. It was not erroneous, therefore, for the judge to give in charge to the jury the law relating to this offense. This is true notwithstanding counsel for the accused not only did not request the law of voluntary...