Pope v. State

• Decision Date: 17 January 1936
• Docket Number: No. 25322.,25322.
• Citation: 52 Ga.App. 411,183 S.E. 630
• Parties: POPE . v. STATE.
• Court: Georgia Court of Appeals

52 Ga.App. 411

183 S.E. 630

POPE .

v.STATE.

No. 25322.

Court of Appeals, of Georgia, Division No. 1.

Jan. 17, 1936.

Syllabus by the Court.

1. The relationship within the ninth degree to either party, which disqualifies a juror from serving, Is relationship by consanguinity; the relationship by affinity extends only to the husband or wife of such blood kin. "Kin and kin are no more related than before." There is no merit in the assignment of error with respect to the qualification of jurors.

2. In defining "involuntary manslaughter" it is error for the court to fail to give in charge to the jury, even without a request, the rules of law*applicable in determining what is an unlawful act. Under the facts of this case it was error to fail to give in charge to the jury the rules of law with respect to unlawful operation of an automobile.

3. The judge should have granted a new trial.

Error from Superior Court, Johnson County; J. L. Kent, Judge.

Alfonso Pope was convicted of involuntary manslaughter in the commission of an unlawful act, and he brings error.

Reversed.

E. L. Stephens and R. Earl Camp, both of Dublin, for plaintiff in error.

J. A. Merritt, Sol. Gen., of Dublin, and C. S. Claxton, of Wrightsville, for the State.

GUERRY, Judge.

1. The defendant was indicted for the offense of murder, and was convicted of involuntary manslaughter in the commission of an unlawful act. It was charged that the assault was made and the killing was done with an automobile driven by defendant. In the motion for new trial complaint is made that certain named jurors were related within the prohibited degree to the prosecutor. One of the jurors, Canady, was alleged to be related to Williams, the prosecutor, as follows: Bee Ann Williams, who was the sister of Sam Williams, the grandfather of the prosecutor, married E. S. Fortner. Mrs. Millie Fortner Frost was a sister of E. S. Fortner, and was the grandmother of the wife of the juror Canady. Another of the jurors, C. T. Blizzard, was alleged to be disqualified, because Sam Williams, the grandfather of the prosecutor, married Miss Tillie Moye, whose brother, Zack Moye, married Miss Ellie Hutchinson, and her father, Joe Hutchinson, was a second cousin of the grandfather of the wife of the juror. The wife of another juror, Wilson, was alleged to be related as a fourth cousin to the wife of the prosecutor. In none of the cases is the relationship alleged that of consanguinity, but that of affinity. As was said by Judge Bleckley in Central R. Co. v. Roberts, 91 Ga. 513, 516, 18 S.E. 315: "Marriage will relate the husband, by affinity, to the wife's blood relations, but will not relate the husband's brother to any of her relations." There is therefore no merit in these grounds.

2. On account of its brevity, we quote from the entire charge of the court, as follows: "Gentlemen of the jury, the grand jury of your county has returned a bill of indictment against the defendant, charging him with the offense of murder. Counsel for the state and the defendant agree and insist that murder is not in volved in this case; and there is only one grade of homicide that is involved, and that is involuntary manslaughter. To that indictment the defendant pleads not guilty, and that forms the issue you are called upon to try. The defendant in this case, as in all criminal cases, enters into the trial of the case with the presumption of innocence in his favor, and that presumption goes with him throughout the entire trial of the case until met and overcome by evidence which satisfies you of his guilt of the crime charged, beyond a reasonable doubt. Moral and reasonable certainty is all that can be attained in a legal investigation. The true question, however, in all criminal cases is, not whether it be possible that the conclusion at which the testimony points may be false, but whether there is sufficient testimony to satisfy you beyond a reasonable doubt that the defendant is guilty of the crime charged. The defendant has made a statement in your hearing. To that statement you can give just such weight and credit as you think it is entitled to receive. You can believe it in preference to the sworn testimony in the case, and acquit the defendant. Now, gentlemen, the law under which this defendant is being prosecuted is...