Mcpherson v. The State

• Decision Date: 30 June 1857
• Docket Number: No. 10.,10.
• Citation: 22 Ga. 478
• Parties: John McPherson, plaintiff in error. vs. The State,defendant in error.
• Court: Georgia Supreme Court

22 Ga. 478

John McPherson, plaintiff in error. vs. The State, defendant in error.

No. 10.

Supreme Court of the State of Georgia

JUNE TERM, 1857.

Murder, in Appling Superior Court. Tried before Judge Cochban, at May Term, 1857.

John McPherson was indicted for the murder of James Carter. The killing took place in the county of Appling, on the night of the 22d January, 1857.

The prisoner pleaded not guilty. After the testimony was closed, and the charge of the Court given, the jury retired and returned a verdict of involuntary manslaughter in the commission of an unlawful act.

The prisoner moved for a new trial; which motion the Court refused, and his counsel thereupon excepts, and tenders his bill of exceptions.

The substance of the evidence, and all the grounds of exception, are so fully stated and set out in the decision of the Court, that it is unnecessary to re-state them here.

The facts of the case, and the legal questions made and adjudicated, will fully appear from the following opinion:

Gaulden, for plaintiff in error.

Solicitor General & T. T. Long, for the State.

By the Court.—Benning, J. delivering the opinion.

The substance of the testimony in this case, it being a murder case, seems to be as follows:

On the 22d of January, 1857, a number of persons were at McPherson's (who was the party indicted,) to assist him in moving a house. Among them were Carter, Spence, and Leggett; Carter being the man killed. At some time in the day, two gallons of liquor were procured, a part or the whole of which, was drunk up by the company. The drinkers became much excited, if not intoxicated, by the liquor, and, in consequence, behaved themselves in a noisy, rude, and disorderly manner. The job of moving the house was finished sometime before night. The company had dinner, and the dinner was at a late hour. The company did not leave after dinner. McPherson went to bed. The company still stayed. They "danced about;" they sang; some of them overturned a bench to the hazard of a child; two of them, Spence and Leggett, an hour and a half or two hours in the night, went into the smokehouse to get something to eat, first having told Mrs. McPherson that they intended to do so, to which.she made no reply. Whilst in the smoke house, they made a noise—a board fell. The noise attracted the attention of McPherson; he got out of bed, remarking, that "he would kill some of them;" took down his gun, and went into the yard. Spence and Leggett hearing his threat, and hearing him take down his gun, ran out of the smoke house, Spence ahead. McPherson was then in the yard. Spence ran by him, and as he did so, McPherson snapped his gun at him.

It does not appear that Mrs. McPherson communicated to Mr. McPherson what Spence and Leggett had fold her. The night was dark, clear and cold. Carter was standing in the dark when shot.

What happened then, was, according to the testimony of the State, this: Leggett, who was running close behind Spence, when the gun snapped, caught the gun about midway of the barrel and asked McPherson-\'what in the world he meant?" To which McPherson replied, "what in the hell were you in the smoke house for?" McPherson ran back, holding the gun, and kept "jerking" it, until he got one step on the door. He kept "jerking" it, and then it went off and killed Carter, who was standing off in the yard.

Leggett, (one of the State's witnesses,) swore that he caught the gun to keep McPherson from shooting him; and that McPherson tried to take the gun away from him; that he was not "jerking'' the gun, but that McPherson was; that he was holding on to the gun, to keep McPherson from shooting him; that when he caught hold of the gun, McPherson was five or six feet from the door.

But, according to the testimony of the accused, what happened then was this: McPherson said, "if you dont keep out of my smoke-house, I'll show you." Leggett said, "I'll break your dammed head with the gun." When Leggett took hold of the gun, McPherson was going into the house, one of his feet being on the door block, and the other on the plank. Leggett was trying to get the gun away, and gave it a "jerk." McPherson fell up against the house, and the gun went off."

Several witnesses for the State swore, that they would not believe the witness for the accused.

A new witness or two for the accused swore, that they would believe the witnesses for the accused.

The counsel for the accused requested the Court to charge:

1st. That "the jury are the judges of the law and the facts, and are not bound by any charge that the Judge may give."

"2d. That McPherson must have intended to kill some one at the time the gun fired. There must be a co-operation of act and intention to constitute a crime."

"3d. If they believe it to be accidental and not intended by prisoner, the prisoner should be acquitted."

"That the witnesses who were attempted to be discredited, are still competent, and the jury may or may not believe them."

4th. "That unless the jury are satisfied beyond all reasonable doubts that the firing of the gun which resulted in Carter's death, was the voluntary and individual act of defendant, done with the intention of killing Carter, or some other person, then they ought to find the defendant not guilty."

"5th. That if the jury believe from the evidence, that if the firing off of the gun was occasioned by the struggle between the defendant and Robert Leggett for the gun, they ought to find the defendent not guilty."

"6th. That if the jury believe from the evidence that the firing of the gun when Carter was killed, was not intended by defendant, but that the gun went off by accident, then they should find the defendant not guilty."

"7th. That it the jury believe that the killing of the deceased was the result of misfortune or accident, unaccompanied with any evil design or intention on the part of the defendant to kill any one when the gun went off, then the jury should find the defendant not guilty."

"8th. That if the jury should believe that the firing of the gun was the voluntary act of the defendant, still if it was fired off without any actual intention on the part of the. defendant to kill Carter, or any one else, then the jury ought to find the defendant not guilty."

"9th. That a threat made under excitement, no matter from what cause this excitement emanated, will not authorize the jury to presume that an act done after that threat was made, was deliberately done, and that a threat which accused would not have made in his cooler moments, or made under excitement of any kind, is entitled to but very little weight."

"10th. That where a threat is proven to have been made which is susceptible of two constructions, the one an innocent, the other a criminal construction, that it is their duty to give the threat that construction most favorable to the prisoner."

Of these requests the Court refused the 1st, the first part of the 3rd, the 4th, the 5th, the 6th, the 8th, the 9th, and the 10th: granted the 2nd; granted the last part of the 3d, but with the addition, " "that they are competent" (the witnesses impeached) "and may be believed if corroborated;" and granted the 7th, but granted it with "comments." What the comments were does not appear.

The Court then gave the following charge to the jury: "That if the prisoner went out of his house with a riotous intent of killing Spence, or any one else, and was foiled in this, and any one else was killed by him. though he did not intend it, that he was guilty; that if Spence and Leggett went into the smoke-house with notice to Mrs. McPherson, the prisoner's wife, prisoner had no right to use a deadly weapon on them, it being at most, a trespass.

"That if Leggett took hold of the gun to protect himself, he had a right to do so, and if the consequences were fatal to Carter, prisoner was guilty. And that if the prisoner did not intend to kill Carter, but went into the yard with evil design towards Spence and intended to kill him, still he was guilty.

"If you believe from the testimony that prisoner was in the pursuit of a lawful act, and did not use due caution and circumspection he is guilty of involuntary manslaughter."

The jury found the accused guilty of involuntary manslaughter in the commission of an unlawful act.

The accused then moved for a new trial, and on the following alleged grounds:

1st. That the verdict was contrary to the evidence.

2d. That the verdict was contrary to the law.

3d. That the verdict was contrary to the charge of the Court.

4th. That the Court erred in its charges and its refusals to charge. 5th. That the Court erred in ruling out the dying declarations of the deceased, which went to show that he said that he, deceased, did not believe that prisoner did intend to hurt him.

6th. That the whole charge to the jury was wrong. 7th. That from the tenor of the Judge's charges an intimation was given of what the Judge thought was proved. The Court overruled the motion for a new trial.

The accused excepted to the judgment overruling the motion for a new trial; and he assigns, as errors, that judgment, the charges given, the charge refused, and the rejection of the dying declarations of Carter, the person killed.

Was the Court right in rejecting the testimony offered as to the dying declarations of Carter.

We think so. The "belief of Carter could not be entitled to more respect than that to which the belief of a witness is entitled.

As to the requests: Is it true, that "the jury are the judges of the law, and the facts, and are not bound by any charge that the Judge may give?"

The 16th section of the 14th division of the Penal Code, is as follows: "On every trial of a crime or offence contained in this code, or for any crime or offence the jury shall be judges of the law, and the fact, and shall in every case give a general verdict of "guilty, " or "not guilty" and on the acquittal of any defendant or prisoner, no new trial shall on any account be granted by the Court."

"Judges of the law...