Hackney v. State

• Decision Date: 11 October 1949
• Docket Number: 16810.
• Citation: 55 S.E.2d 704,206 Ga. 64
• Parties: HACKNEY v. STATE.
• Court: Georgia Supreme Court

55 S.E.2d 704

206 Ga. 64

HACKNEY v. STATE.

No. 16810.

Supreme Court of Georgia

October 11, 1949

Thos. H. Crawford, Blue Ridge, W. Paul Carpenter, Atlanta Harris, Henson & Spence, Atlanta, Charles A. Wofford Atlanta, for plaintiff in error.

Jas T. Manning, Sol. Gen., Marietta, William Butt, Blue Ridge, Eugene Cook, Atty. Gen., Frank H. Edwards, Atlanta, for defendant in error.

Syllabus Opinion by the Court.

HAWKINS Justice.

1. The excerpt from the charge complained of in the first ground of the amended motion for a new trial--that, 'In the legal sense malice means an intent to kill a human being in a case where the law would neither justify nor in any degree mitigate or excuse the homicide if the killing takes place as intended. In order to constitute malice it is not necessary for the intent to kill to linger in the mind of the slayer for any considerable length of time before the homicide takes place. If there is time enough for the intent to form before the killing, and the killing is unlawful and takes place in accordance with such intent, then the killing would be attributable to malice and would be murder. Legal malice is not illwill or hatred. It is an unlawful intention to kill without justification or mitigation, which intention must exist at the time of the killing alleged. But it is not necessary for that intention to exist for any definite length of time before the killing. In legal contemplation a man may form the intent to kill, do the killing instantly, and regret it as soon as done, and be guilty of murder. In determining whether there was malice the jury may consider all the facts and circumstances surrounding the transaction, including the character of the weapon used, if one was used, the manner in which it was procured and used, and any other circumstances tending to illustrate that feature of the case as those circumstances are made to appear from the evidence on the trial. If you find that a homicide is proved to have been committed in this case by the defendant, and with a weapon that you find was in the manner in which it was used upon the occasion in question [a weapon] likely to produce death, the law would presume malice and the intent to kill'--is not subject to the criticism, (a) that it was not sound as an abstract principle of law, or (b) that it places the offense of voluntary manslaughter in the category with murder. Bailey v. State, 70 Ga. 617; Cook v. State, 77 Ga. 96; Warren v. State, 163 Ga. 176, 135 S.E. 735; Daniel v. State, 200 Ga. 316 (2), 37 S.E.2d 181; Dowdell v. State, 200 Ga. 775(2), 38 S.E.2d 780). Even if the charge could be held subject to the criticism last stated, it was not harmful to the defendant, for under no theory of the evidence in this case was the crime of voluntary manslaughter involved. For this reason, the rulings in Dowdy v. State, 96 Ga. 653, 23 S.E. 827, and Delk v. State, 135 Ga. 312, 69 S.E. 541, Ann.Cas.1912A, 105, relied upon by counsel for the movant, have no application to the present case.

2. The second ground of the amended motion for a new trial complains 'Because the trial judge failed to submit to the jury in his charge the question whether movant be guilty of causing the death of the deceased 'without any intent to do so but in the commission of an unlawful act.'' If this ground be sufficiently...