Little v. State, (No. 6423.)

• Decision Date: 15 March 1928
• Docket Number: (No. 6423.)
• Citation: 142 S.E. 674,166 Ga. 189
• Parties: LITTLE. v. STATE.
• Court: Georgia Supreme Court

166 Ga. 189

142 S.E. 674

LITTLE.

v.STATE.

(No. 6423.)

Supreme Court of Georgia.

March 15, 1928.

(Syllabus by Editorial Staff.)

Error from Superior Court, Morgan County; James B. Park, Judge.

L. B. Little was convicted of murder, and he brings error. Affirmed.

See, also, 164 Ga. 509, 139 S. E. 37.

This is the second appearance of this case in this court. Little v. State, 164 Ga. 509, 339 S. E. 37. The evidence in the former trial, in its aspects most favorable to the defendant, is set out in the third division of the opinion. It was substantially the same upon the last trial, with one exception: On the first trial George Shaw, a witness for the state, testified that the deceased did not draw his pistol until the defendant had fired the third shot, and on the last trial this witness swore that about the time the defendant fired the first shot the deceased drew his pistol. The jury convicted the defendant of murder, with a recommendation to mercy. He made a motion for a new trial upon the general grounds, and upon the following special grounds:

"(1) That the court erred in refusing to give in charge to the jury the following written request, which was presented to the trial judge before the conclusion of his charge, to wit: 'I charge you that if you believe in this case, or if you have any reasonable doubt about it, that Little shot Herrin under an honest belief and fear that Herrin was then and there making an effort to shoot him, and if you believe, or have any reasonable doubt about it, that Little is a reasonably courageous and prudent man, and if you further believe, or if you have any reasonable doubt about it, that the circumstances existing at the time were sufficient to justify Little in believing that Herrin was attempting to shoot him, and that Little shot and killed Herrin under the influence of that belief, and that fear, and not in a spirit of revenge for some past wrong, real or imaginary, then I charge you that you will not be authorized to find Little guilty of any offense, although you may be satisfied that Little was mistaken, and that, in fact, Herrin did not intend at the time, and was not attempting at the time, to do Little any violence whatsoever.' Movant says that the principle of law set out in said request to charge was pertinent to the case under the statement of the defendant, and that said principle was not embodied in any part of the charge of the court. (2) Because the court erred in holding that the juror J. B. Harris was a competent juror, and movant objected to his competency on the ground that he was a member of the grand jury of Morgan superior court at the Alarch term, 1927. No grand jury served at the June term, 1927, of said court. Movant contends that, under the provisions of Code section 824, said juror was inelegible to serve as a traverse juror at the September term, 1927, of said court. Movant was compelled to challenge, and did challenge, said juror. The peremptory challenge of movant was not exhausted."

Jos. E. Pottle, of Milledgeville, E. R. Lambert, of Madison, and Orrin Roberts, of Monroe, for plaintiff in error.

Jos. B. Duke, Sol. Gen., of Eatonton, A. G. Foster, of Madison, Geo. M. Napier, Atty. Gen., and T. R. Gress, Asst. Atty. Gen., for the State.

Syllabus Opinion by the Court.

HINES, J. [1] 1. A request for instruction which does not state the law correctly is properly refused. Thompson v....