Johnson v. State

• Decision Date: 31 January 1908
• Citation: 130 Ga. 27,60 S.E. 160
• Parties: JOHNSON . v. STATE.
• Court: Georgia Supreme Court

60 S.E. 160

130 Ga. 27

JOHNSON .

v.STATE.

Supreme Court of Georgia.

Jan. 31, 1908.

1. Criminal Law — Trial — Instructions — Construction as a Whole.

The charge on the subject of the presumption arising from proof of the killing was in substantial accord with the ruling in Mann v. State, 124 Ga. 760, 53 S. EL 324, 4 L. R. A. (N. S.) 934, and, when the excerpt to which exception was taken is construed in the light of the entire charge, it was not open to the criticism that the court failed to charge the jury the effect of evidence of an accidental or unintentional killing.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1990.]

2. Same.

When taken in connection with the evidence and the entire charge, under the ruling in Brooks v. State, 114 Ga. 6, 39 S. E. 877, the charge that, "when an officer is shot and killed by one whom he is seeking legally to arrest in a legal manner, the offense is murder, and not manslaughter, " was not erroneous.

3. Homicide—Appeal—Harmless Error.

Under the decision in Hill v. State, 41 Ga. 484, the omission by the court to charge on the subject of involuntary manslaughter in the commission of an unlawful act, based on the theory of an accidental discharge of the pistol, furnishes no ground for reversal, where the court charged that the same facts on which instructions as to involuntary manslaughter might have been based would result in the acquittal of the accused. Such charge was more favorable to the defendant than that which he complains was not given.

4. Criminal Law—Reception or Evidence-Reopening Case—Discretion of Court.

Allowing the state to reopen the case, and introduce additional evidence, was a matter within the sound discretion of the presiding judge, and there was nothing to show that such discretion was abused.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1619.]

5. Same.

The charge complained of in the ninth ground of the motion for new trial was not erroneous for any of the reasons assigned in such ground.

6. Same.

There was nothing in any of the other grounds of the motion for new trial which requires a reversal. The evidence was sufficient to support the verdict; and the refusal of a new trial was not. error.

(Syllabus by the Court.)

Error from Superior Court, Fulton County; L. S. Roan, Judge.

Andrew Johnson was convicted of homicide, and he brings error. Affirmed.

W. R. Hammond and Judson Chapman, for plaintiff in error.

C. D. Hill, Sol. Gen., and Jno. C. Hart, Atty. Gen., for the State.

ATKINSON, J. 1. Complaint is made that the court instructed the jury as follows: "Now, gentlemen, as before said, he commences this trial with the presumption of innocence in his favor; but I charge you that, when the killing is shown, if it is shown to be the act of the prisoner, and if it is shown that Manier was killed, as charged in this bill of indictment, by being shot to death with a pistol, if the evidence shows that this defendant here did the killing, then the bur-den is cast upon the defendant to either justify the killing or to show something to mitigate it." The ground of exception was that the court failed to explain to the jury that, if the killing was done by the defendant accidently or unintentionally, then such killing would not cast the burden upon the defendant of justifying it or mitigating it, and, further, because the charge did not "explain to the jury that an accidental killing would not cast the burden on the defendant." In addition to the excerpt complained of, the judge charged in connection therewith that "the evidence to do this, to justify it or to mitigate it, or to excuse it, may come from evidence offered by the state to prove the homicide, or it may come from the evidence offered by the defendant, or from the defendant's statement, if you believe it." The charge as a whole was substantially the same as was delivered in the case of Mann v. State, which was considered and approved in 124 Ga. 760. 53 S. E. 324, 4 L. R. A. (N. S.) 934. In immediate connection with that portion of the charge to which reference has been made, the judge did not explain that, if the killing was done by the defendant accidentally or unintentionally, such killing would not cast the burden upon the defendant of justifying or mitigating it, but in the last part of the charge the court did instruct the jury that if they believed that, In a struggle over the pistol, without any intention to shoot the officer, the pistol was accidentally discharged and killed the officer, the defendant could not be found guilty. Taking the charge as a whole, it is not subject to the criticism of counsel for plaintiff in error, to which we have already referred.

2. The court instructed the jury that, "when an officer is shot and killed by one whom he Is seeking legally to arrest in a legal manner, the offense is murder, and not manslaughter." Error is assigned upon this charge because it did not state the law correctly, and because it excluded from the jury the defendant's defense that the killing was not done with malice, and for this reason was not murder. Under the ruling in the case of Brooks v. State, 114 Ga. 6-8, 39 S. E. 877, the charge complained of, taken in connection with the evidence and the entire charge, was not erroneous. Elsewhere in the charge the court submitted to the jury the question of whether the killing was done to prevent a legal arrest.

3. Error is assigned upon the failure of the judge, in his charge to the jury, to explain and define the law of involuntary manslaughter in the commission of an unlawful act, but confining the jury to the issue of murder,...