Haul v. State

• Decision Date: 12 August 1909
• Citation: 133 Ga. 177,65 S.E. 400
• Parties: HAUL. v. STATE.
• Court: Georgia Supreme Court

65 S.E. 400

(133 Ga. 177)

HAUL.

v.STATE.

Supreme Court of Georgia.

Aug. 12, 1909.

1. Homicide (§ 135^*) — Indictment — Sufficiency—Instrument Used.

An indictment, charging murder by the defendant stabbing the person killed "with a certain knife and with other sharp instruments and with other sharp instruments to the grand jury unknown, " is not subject to demurrer on the ground that "this allegation was too general to put the defendant upon proper notice as to what instrument is alleged to have been used by him, " or on the ground that such allegations are "too indefinite, in that the weapon that is alleged to have been used is not particularly set forth."

[Ed. Note.—For other cases, see Homicide, Cent. Dig. § 220; Dec. Dig. $ 135.*]

2. Homi.cide (§ 300*)—Criminal Law (§ 813*) — Instructions — Justifiable Homicide — Reading Sections of Code.

The statement of the defendant was such as to authorize the court to charge sections 70 and 71 of the Penal Code of 1895, and it was error to refuse a timely written request to give instructions which applied the principles of law embodied in these sections to a defense set up in such statement and which is provided for in the sections named.

(a) Merely reading to the jury the sections of the Code above referred to did not sufficiently instruct them as to the law applicable to the issues involved, where by appropriate and timely written request the court was asked to apply the abstract law embodied in such sections to the issues in the case.

[Ed. Note.—For other cases, see Homicide, Cent. Dig. § 623; Dec. Dig. § 300;* Criminal Law, Cent. Dig. g 1979; Dec. Dig. § 813.*]

3. Homicide (§ 300*)—Justifiable Homicide —Instructions.

It was proper in this case for the court to give in charge to the jury sections 70, 71, and 73 of the Penal Code of 1895; but it was error to so give them as to confuse the defenses arising under sections 70 and 71 with the defense arising under section 73, and apparently to limit by the terms of section 73 the defenses provided by the other sections.

[Ed. Note.—For other cases, see Homicide, Cent. Dig. § 619; Dec. Dig. § 300.*]

4. Criminal Law (§ 921^2-*) — New Trial — Harmless Error—Admission or Evidence.

Where a baseball bat was introduced in evidence, if it was error to allow, over defendant's objection, a witness to testify to his opinion of the length and weight of the bat, it was not such error as requires a new trial.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 2208; Dec. Dig. § 921.*]

5. Homicide (§ 300*)—Instructions—Urgent Danger.

The evidence was such as to authorize the jury to find that there was between the defendant and the deceased a mutual intention to fight, and a mutual combat, and there was no error in charging section 73 of the Penal Code of 1895.

[Ed. Note.—For other cases, see Homicide, Cent. Dig. § 614; Dec. Dig. § 300.*]

6. Criminal Law (§ 782*)—Instructions.

In charging the jury in regard to flight by the defendant after the alleged commission of a crime by him, it was not cause for a new trial to charge: "That is a matter altogether for your consideration. It would have just such weight and credit as you as intelligent jurors would give it. You are the exclusive judges of every single particle of evidence that comes from this stand, and you are exclusively the judges and the exclusive appliers to this law after I have given it to you." Thomas v. State, 129 Ga. 419, 59 S. E. 246 (5).

[Ed. Note.—For other cases, see Criminal Law, Dec. Dig. § 782.*]

7. Homicide (§ 309*)—Trial—Instructions-Voluntary Manslaughter.

It was error to charge: "If it should appear that the defendant was the aggressor, and the deceased turned upon him and wrested the weapon with which the deceased was attacked from him, if it should appear that the defendant declined any further struggle before he struck the mortal blow, in that case, if he, declined, if the evidence shows anything of that character, then you would be justified, if he backed off, in finding him guilty of voluntary manslaughter." Such charge did not embody a statement of such facts as would make the defendant guilty of voluntary manslaughter.

[Ed. Note.—For other cases, see Homicide, Cent. Dig. § 649; Dec. Dig. § 309.*]

8. Homicide (§ 317*)—New Trj.al—Grounds.

Th, e failure of the court to give in charge the legal definition of the term "felony, " appearing in Pen. Code 1895, § 70, which section was given in charge, was not such error as requires a new trial. Pickens v. State, 132 Ga. 46, 63 S. E. 783.

[Ed. Note.—For other cases, see Homicide, Cent. Dig. § 685; Dec. Dig. § 317.*]

(Syllabus by the Court.)

Error from Superior Court, Grady County; Frank Park, Judge.

Alf Hall was convicted of murder, and he brings error. Reversed.

R. C. Bell and W. J. Willie, for plaintiff in error.

W. E. Wooten, Sol. Gen., and Jno. C. Hart, Atty. Gen., for the State.

HOLDEN, J. 1. The plaintiff in error was convicted of murder, and, to the order of the court overruling his motion for a new trial, he filed exceptions. Error was also assigned on the order of the court overruling the defendant's demurrer to the indictment. The indictment alleged that the defendant committed the offense "by stabbing the said Henry Howell with a certain knife and with other sharp instruments and with other sharp instruments to the grand jury unknown." Defendant's demurrer to the indictment alleged: "Defendant specially demurs to that part of said allegation, 'and with other sharp instruments and other sharp instruments to the grand jurors unknown, ' because that this allegation is too general to put the defendant upon proper notice as to what instrument is alleged to have been used by him; said allegation being also too indefinite in that the weapon that is alleged to have been used is not particularly set forth." There was no merit in the demurrer, and the court committed no error in overruling the same. See Pen. Code 1895, § 929; Hicks v. State, 105 Ga. 627, 31 S. E. 579. In the case of Johnson v. State, 90 Ga. 442, 16 S. E. 92, s. c. 92 Ga. 36, 17 S. E. 974, cited by plaintiff in error, the indictment alleged an assault with intent to kill by the use of "arsenic poison and other poisons to the grand jurors unknown, " but failed to state "how or in what manner the accused used the poisons in the commission of the alleged offense."

2. The evidence showed that the deceased died from a wound inflicted with a knife. The defendant in his statement to the jury, among other things, stated, in substance, the following: He went to a house where the deceased was, and told him Mr. Singletary said for the deceased to stay away from there. Mr. Singletary had been talking to him, and told "me to tell you to stay away from here." The deceased cursed the defendant, and said: "I will burst your brains out. I will kill you." The deceased got a chair after the defendant and tried to kill him, and told him that he would see him again, that he was going to kill him, and said "that he would see me again, and that he was going to kill me." The defendant went to Mr. Singletary's, and, while talking to him, the deceased came up, and the defendant hit him with a baseball bat, which the deceased took from him and hit the defendant on the arm several times. The defendant struck at him with a knife. The deceased wheeled around and struck. The deceased run off a few steps and fell. The defendant further stated: "I forgot, gentlemen, he had a knife. He was fixing to kill me with his knife. He had a knife in his hand. He tried to cut me with the knife. He had a good knife. That is the reason I had to do what I did. He tried to cut me; tried to kill mewith that knife; had a good knife too. I had a little old sorry knife; couldn't hurt nothing with it. Yes, sir; he had a good knife." The statement of the defendant was susceptible of the meaning that the deceased had a knife, and to carry out his previous threat "was fixing to kill" defendant with it when defendant struck him with the bat and stabbed him with the knife. The statement made by the defendant was such as authorized a charge by the court of the principles of law embodied in sections 70 and 71 of the Penal Code, and it was accordingly error for the court to refuse to give in charge the following, as set forth in a written request, timely presented by the defendant's counsel: "If you believe from all the circumstances of the case that the situation was such as to excite the fears of a reasonable man, in the situation of the defendant, that a felony was about to be committed upon him, or that his life was in danger, and that the defendant acted under those fears, and not in a spirit of revenge, and took the life of the deceased, then you should acquit him, and you should do so notwithstanding you may believe the defendant was in no danger, and that if he had not acted the deceased would not have committed any felony upon him. It is not necessary that there should have been any actual danger of a felony about to be committed on the defendant, provided the defendant, acting under the fears of a reasonable man, believed in good faith that he was in such danger." This request was properly framed, and...