Mulligan v. State

• Decision Date: 19 July 1916
• Docket Number: 7481.
• Citation: 89 S.E. 541,18 Ga.App. 464
• Parties: MULLIGAN v. STATE.
• Court: Georgia Court of Appeals

89 S.E. 541

18 Ga.App. 464

MULLIGAN v. STATE.

No. 7481.

Court of Appeals of Georgia

July 19, 1916

Syllabus by the Court.

Under the evidence of a witness for the state the law of voluntary manslaughter was applicable in this case.

It is not error for the court in a criminal case to instruct the jury: "You are to find the facts solely from the testimony submitted on the trial of the case. * * * The charge of the court is the means, and the only means, by which you are to know the law of the case, just as the testimony put before you is the means, and the only means, by which you are to know the facts of the case. * * * After receiving the law from the court and finding the facts from the testimony submitted on the trial of the case, you are to judge of them and say what the verdict ought to be considering what the law is and what the facts are. * * * You are not authorized to go outside of the testimony submitted on the trial of this case to find the facts of the case." The court charged the presumption of innocence and the statute allowing the accused to make a statement at the trial.

An instruction to the jury that "a reasonable doubt is one that grows out of the testimony and leaves a reasonable mind wavering and unsettled, not satisfied from the evidence," does not restrict the jury to doubts growing out of the evidence, but includes a reasonable doubt arising from a want of testimony, as well as a reasonable doubt based upon conflicts in the evidence and the credibility of the witnesses, and, when considered with the charge on the prisoner's statement, is not subject to objection.

The fact that the presiding judge stated in his charge, "in two separate and distinct places," the language or substance of the indictment did not unduly emphasize the contentions of the state to the prejudice of the prisoner.

On the trial of one accused of murder, an instruction that "The burden * * * is successfully carried if circumstances showing a justification arise out of the evidence introduced by the state against the defendant, or from any testimony submitted on the trial of the case"--is not subject to the criticism that the court thereby excluded from the consideration of the jury the force and effect to be given to the prisoner's statement; the court having fully and fairly charged on that subject.

There was no error in the charge on the presumption of malice and the burden arising "when the state clearly establishes the killing as charged."

An instruction that "under this bill of indictment the question of manslaughter may or may not be involved" is inapt, but is not reversible error. If, in the light of the evidence, the facts and circumstances of the case require a charge upon voluntary manslaughter, the court should charge the jury on the law applicable to that grade of homicide.

That the court stated the substance of the indictment and instructed the jury, "If you fail to find these facts to be sustained," etc., is not objectionable, in that the presiding judge did not reiterate what facts the court referred to in the statement of the indictment.

Under the facts of this case there was no reversible error in the following charge: "The defendant says that what he did in this rencounter, he did it to defend himself against an unlawful attack made upon him by the deceased, William Lee Jett, at the time in question."

Taking into consideration the contention of the state and the statement of the accused, the court did not err in limiting the doctrine of self-defense to a finding on the part of the jury that "the deceased was the aggressor."

It was not error for the court, in permitting a witness to be asked leading questions, to reply to counsel's objection "It is a matter of discretion. We want the truth of the matter." This was simply a statement of law, and did not prejudice the rights of the accused.

It is not error to admit testimony of the sheriff, who made the arrest soon after the homicide, that the accused was drinking at the time of the arrest.

The order in which the court gave the forms for the verdict is not subject to the exception taken.

The venue of the homicide was established beyond a reasonable doubt.

On the trial of one for murder, where the evidence, or the defendant's statement at the trial, would authorize the jury to find that the person killing acted in self-defense, on account of a reasonable fear aroused in his mind by words, threats, or menaces, in connection with the other facts in the case, it is not erroneous for the court, in instructing the jury on the law of voluntary manslaughter as contained in Pen. Code 1910, § 65, to fail or refuse to charge in immediate connection therewith the right of the jury to consider words, threats, or menaces, in determining whether the circumstances attending the homicide were such as to justify the fears of a reasonable man that his life was in imminent danger, or that a felony was about to be committed upon his person. Nor is the failure of the court to give such qualifying instructions in any other portion of his charge erroneous solely for the reason that he gave in charge the law of voluntary manslaughter in the language of Pen. Code 1910, § 65.

Error from Superior Court, Polk County; A. L. Bartlett, Judge.

James Mulligan was convicted of voluntary manslaughter, and he brings error. Affirmed.

Where the issue of voluntary manslaughter was raised, a charge that under the indictment the question of manslaughter might or might not be involved, though inapt, was not reversible error.

Irwin & Tison and W. W. Mundy, all of Cedartown, and Wm. M. Johnson, of Gainesville, for plaintiff in error.

J. R. Hutcheson, Sol. Gen., of Douglasville, and Ivey F. Mundy, of Rockmart, for the State.

HODGES J.

James Mulligan pleaded not guilty to an indictment charging the murder of William Lee Jett, and the jury found him guilty of voluntary manslaughter. It appears from the evidence that the killing took place at what is known as the "Calhoun place" in Polk county, that the accused was the father-in-law of the deceased, and that they were living in the same house, but were not on speaking terms. Just before the homicide the accused was in the house, singing a song, when the deceased came in the room and said to him "I reckon you mean that for me," and thereupon cursed. The accused got up with a knife in his hand, the deceased opened his knife and started toward the accused, and the accused met the advance, and they were separated by the wife of the deceased, the daughter of the accused; the deceased left the room, and the accused walked towards the door of the room. Alonzo Jett, son of the deceased and grandson of the accused, testified:

"The next time I saw my father he walked around to the woodpile and picked up the axe and come back to the kitchen door. My grandfather was standing there by the fire, and papa walked up and had the axe on his shoulder and drawed it back to hit grandpa, and grandpa jerked his gun out, and I grabbed the gun."

Then the accused fired his gun and killed Jett. P. B. Bishop, a neighbor, testified that he heard a racket over at Jett's house, and looked and saw Jett standing right in front of the door of the house; did not see the accused, but heard the accused threaten to kill Jett, and immediately thereafter the pistol fired. The accused was not standing in the door, but seemed to be inside the house, and Jett was standing away from the door about a foot and a half. Jett did not have the axe in his hand, and the witness did not hear Jett say anything just before the shooting. When the witness went to Jett's house he saw the axe near where the body of Jett fell.

The accused stated that he was standing by the fireplace, singing a song, when his son-in-law came in and said "You are meaning that for me," and about that time the wife of the deceased and Alonzo Jett came in and ran between the deceased and accused, and they pushed the accused towards the door, and the deceased jumped out of the door; that he (the accused) stopped about three steps inside the house, and that the deceased drew an axe on him and said, "I am going to split your brains out;" that he thought his life was in danger, and he fired the pistol and killed the deceased.

1. On the trial of one accused of murder, if the evidence, in any view, tends to show mutual combat on the part of the accused and the deceased, or a mutual intention to fight, it authorizes a charge of the law on voluntary manslaughter, and it is the duty of the court so to charge. In this case there was some evidence which, if believed, tended to show a mutual intention to fight, and there were some circumstances tending to show such intention, and it devolved upon the court, as a matter of duty, to give to the jury proper instructions covering the law of voluntary manslaughter. Smith v. State, 10 Ga.App. 840, 74 S.E. 447; Land v. State, 11 Ga.App. 761, 76 S.E. 78.

2. The following excerpts from the instructions of the court to the jury are excepted to:

"You are to find the facts solely from the testimony submitted on the trial of the case. * * * The charge of the court is the means, and the only means, by which you are to know the law of the case, just as the

...