Heard v. The State Of Ga.

• Decision Date: 28 February 1883
• Citation: 70 Ga. 597
• Parties: Heard. vs. The State of Georgia.
• Court: Georgia Supreme Court

70 Ga. 597

Heard. vs. The State of Georgia.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1883.

Criminal Law. New Trial. Verdict. Charge of Court Before Judge Willis. Marion Superior Court. October Term, 1882.

Reported in the decision.

Blandford & Garrard, for plaintiff in error.

Thomas W. Grimes, solicitor general, for the state.

Jackson, Chief Justice.

The defendant was tried and convicted of the crime of voluntary manslaughter, and, being denied a new trial, brought the case here for review.

1. The first ground of the motion is, that the verdict is contrary to law and the evidence. The evidence shows a fight between the parties, who were brother and sister, springing out of the brother having put the sister\'s child, a little boy, in a hog-pen, and ordering him to catch a hog, struck the child, it seems, with a little switch, when it cried, and the mother came out, and the fight ensued. It continued for some time in the yard, and in the house afterwards, when the brother came out and got a stick, and the sister came out with the gun. The brother wrested it from her and struck her with the stick; thereupon, she wrested it again from him, and, stepping back one step, the gun was fired, and the brother was shot in the bowels, and died in three-quarters of an hour. This evidence is sufficient, we think, to sustain a verdict of voluntary manslaughter, and the verdict is not contrary to the law or unsupported by the evidence.

There is testimony that the brother struck the defendant over the head with a rock, when he had her down; but it is in proof that no bruise was on her head of any sort. She threatened to kill him with the gun, and in her statement said only that she was obliged to kill him to save her own life. So that the entire testimony, taken together with the statement, makes a clear case of voluntary manslaughter.

2. The first exception to the charge is that the court erred in saying to the jury that " mathematical certainty is not required in legal investigation. All that is required is moral certainty. Are your minds and consciences satisfied that the charge is true? If so, it is sufficient to authorize a conviction."

It is not specified what part of this charge is erroneous. Certainly the first sentence of it is not. The second sentence is equally free from fault. The third and fourth, when construed in connection with the other two and that part of the charge which explains and charges the doctrine of reasonable doubts, are equally sound. Under the rulethat, where a part of the charge excepted to is sound, this court cannot reverse the judgment on that assignment of error, unless it specifies the unsound part, there is nothing in this ground of the motion which is tenable at all. Even, however, if each sentence could be considered as a separate exception and assignment of error, the above charge would stand, when construed in connection with the charge, on reasonable doubts.

3. The other ground is liable to the same criticism. It is still more vulnerable. It is as follows:

" Justifiable homicide is the killing of a human being, by commandment of the law, in execution of public justice —That is not insisted upon.11 this case —By permission, in advancement of public justice, which is not insisted on. In self-defence, or in defence of habitation, property or person against one who manifestly intends or endeavors, by violence or surprise, to commit a felony on either. In order to justify a person in taking the life of another, it must be to prevent a felony being committed upon himself or upon his habitation, and a felony, under our law, is any crime that is punishable by confinement in the penitentiary or by death. Now, to justify a party in taking the life of a human being under our law, it must be done to prevent a felony being committed, either upon his person or habitation, or it must be done under circumstances to justify a reasonable man in believing that one of these offences was about to be committed.

" Now, in this case, did the prisoner take the life of the deceased to prevent a felony being committed upon person or habitation? Or did she take it under circumstances that would justify a reasonable man in believing that such an offence would be committed? If so, then she would be justifiable in taking the life of the deceased. A bare fear of these offences, to prevent which the homicide is alleged to have been committed, shall not be sufficient to justify the killing. It must appear that the circumstances were sufficient to excite the fears of a reasonable man, andthat the party killing really acted under the influence of those fears, and not in a spirit of revenge. If a person kill another in his defence, it must appear that the danger was so urgent and pressing at the time of the killing, that, in order to save his own life, the killing of the other was absolutely necessary, and it must appear that the person killed was the assailant, and that the slayer...