Mosley v. State
| Decision Date | 02 April 1912 |
| Docket Number | 3,850. |
| Citation | 74 S.E. 569,11 Ga.App. 1 |
| Parties | MOSLEY v. STATE. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
The writ of error will not be dismissed because the April adjourned term, 1911, of the court is designated in the bill of exceptions, which was certified by the trial judge, as the "July adjourned term, 1911," since it appears from the record that the trial in fact occurred in the month of July, 1911. Where the identity of the trial which it is sought to review by the bill of exceptions with the trial set out and described in the record is unequivocally established by the record itself, the particular designation applied to the term as a matter of nomenclature may be disregarded, as immaterial.
The excerpts from the judge's charge to the jury upon which error is assigned, if standing alone, might be amenable to criticism; but viewing them in connection with the immediate context, and considering the instructions as a whole, the charge was free from error, and manifestly not prejudicial to the accused.
The evidence authorized the verdict.
Verdicts are to be given a reasonable intendment, and not to be rendered ineffectual when the true meaning of the finding can be readily ascertained. In every instance a verdict should be construed in the light of the maxim that that is certain which can be rendered certain.
(Additional Syllabus by Editorial Staff.)
In a prosecution for assault with intent to murder, the expression in an instruction: "Now, you determine this question: If the party shot in this case had died, what would be the defense, murder or manslaughter?" though subject to criticism when taken by itself, is not error, where the court had instructed fully the law of justifiable homicide, had told the jury to take the case and the evidence and determine whether any offense was committed, and had recapitulated by charging that if defendant acted in defense of his brother against an assault which amounted to a felony, or what appeared to him to be a felony, he would have the right to defend his brother against it.
In a prosecution for assault with intent to murder, an instruction that the jury are the judges of all the circumstances, and that it is for the jury to determine whether, in the defense of defendant's brother, that defense stands upon the same footing of reasonable justice and amounts to a justification is not error, as submitting to the jury the question of law whether defendant would be justified in shooting to defend his brother, where the judge had correctly charged on the doctrine of mutual defense as applicable to brothers.
Error from Superior Court, Tattnall County; W. W. Sheppard, Judge.
Enoch Mosley was convicted of shooting at another, and brings error. Affirmed.
H. H Elders, for plaintiff in error.
N. J Norman, Sol. Gen., for the State.
1. A motion to dismiss the writ of error is made, upon several grounds. All of them, however, can be treated as being only a presentation in different ways of the question whether the plaintiff in error should not have designated the term of the court at which the accused was tried as the April adjourned term, 1911, of Tattnall superior court, rather than the July adjourned term, 1911, of the same court, as it is designated in the motion for a new trial and in the bill of exceptions. It is insisted that the laws of Georgia do not provide for any July adjourned term of the superior court of Tattnall county, and that no such term was held, as will appear from an inspection of the brief of the evidence and the charge of the court sent up in the record; also that the motion for a new trial and the bill of exceptions referred to a different term from the one in which the case was tried, and that the state's counsel was not served with the bill of exceptions for the case tried at the April adjourned term, 1911, and brief of the evidence was filed, approved, and sent up in a case purporting to have been tried at the July adjourned term of the superior court of Tattnall county. It appears from the bill of exceptions that a case against Enoch Mosley, the present plaintiff in error, was tried at the July adjourned term, 1911, of the superior court of Tattnall county. It is recited therein that the motion for a new trial was set for a hearing on September 2, 1911, and was finally heard and determined, and the motion overruled, on September 26, 1911, and the judge certifies these recitals in the bill of exceptions to be true. The plaintiff in error specified as material to be sent up to this court the indictment, the verdict, the judgment, the original and amended motion for new trial, the brief of the evidence, the charge of the court, and the order denying a new trial. An inspection of the record discloses that the brief of evidence bears a caption in which the case is said to belong to a term designated as the April adjourned term, 1911, and the charge of the court is preceded by the following caption:
We bear in mind the rule that, when there is conflict between the recitals of a bill of exceptions and the record, the record generally controls. In the present case, however, while there is apparently a difference in the statements certified in the bill of exceptions, and the record, we see no real conflict between them. It is evident that reference is had to the same term of court, the same defendant, and the same trial. The headings of the brief of evidence and of the charge of the court were no doubt made by the official stenographer, and he designated the term of court at which the accused was tried as the April adjourned term, 1911. This designation may or may not be technically correct. The judge certifies that the motion for new trial was set for a hearing September 2, 1911, and was overruled September 26, 1911, and both of these statements are verified by the transcript of the record ordered to be transmitted to this court. In the motion for new trial the term of court is designated as July adjourned term, 1911, of Tattnall superior court. It may be true, technically speaking, that the term was really the April adjourned term of Tattnall superior court, and that this adjourned term was still in session in July, 1911. The term at which the defendant was tried, perhaps, should have been more correctly designated as the April adjourned term, if this was the fact. But it appears from the record that the defendant was not tried until July 18, 1911. His original motion was made on July 22, 1911, and the solicitor general acknowledged service of the motion on the latter day. From all of these statements in the record it conclusively appears that the trial which it was sought to review was the trial of which the record speaks. There can be no doubt that the verdict in the record is the verdict which it was sought to review, even if the term of the court should have been designated in the bill of exceptions as the April adjourned term, instead of the July adjourned term. A comparison of the bill of exceptions and the record relieves the question of any confusion or doubt. It is a mere misnomer as to a term of court thoroughly identified. It is immaterial, and does not afford sufficient ground for dismissing a writ of error. In ordering the record sent up the judge identified it in the bill of exceptions as the motion for new trial filed upon a verdict and judgment against this defendant for the offense of shooting at another, in which the motion had been set for a hearing on September 2, 1911, and finally heard on September 26, 1911, and this removed any possible doubt as to whether the proceedings in the record appertained to a different case from that actually designated in the bill of exceptions.
The cases of Mixon v. State, 85 Ga. 455, 11 S.E. 874 and Pearce v. State, 86 Ga. 507, 12 S.E. 926, are not in point. In Mixon's Case Judge Blandford, in delivering the opinion of the Supreme Court, says that "the record was not brought up in compliance with the act of November 11, 1889, and for that reason the court was...
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