Ridley v. State, 32963

• Decision Date: 06 June 1950
• Docket Number: No. 2,No. 32963,32963,2
• Citation: 60 S.E.2d 249,81 Ga.App. 737
• Parties: RIDLEY v. STATE
• Court: Georgia Court of Appeals

Page 249

60 S.E.2d 249

81 Ga.App. 737

RIDLEY v. STATE.

No. 32963.

Court of Appeals of Georgia, Division No. 2.

June 6, 1950.

Mitchell & Mitchell, Dalton, Chas. A. Pannell, Chatsworth, for plaintiff in error.

W. B. Robinson, Chatsworth, Warren Akin, Sol. Gen., Cartersville, for defendant in error.

Syllabus Opinion by the Court.

GARDNER, Judge.

1. The defendant and his brother, Murphy Ridley, were indicted upon an indictment which charged substantially that they did 'assault and beat Basil Cox, a human being, with a certain blunt instrument, the exact kind and description being to the grand jurors unknown, the same being then and there a weapon likely to produce death, and with malice aforethought did strike and beat the said Basil Cox in the body, head, limb, face, and stomach, thereby inflicting upon the said Basil Cox certain mortal wounds from which the said Basil Cox then and there died.' The defendants were tried together. The jury returned a verdict of not guilty against Murphy Ridley, the brother of the defendant and returned a verdict of guilty against the defenant for voluntary manslaughter. The defendant filed a motion for a new trial on the general grounds and several special grounds which we will deal with separately hereinafter. We will not here attempt to set out the evidence but will discuss the evidence under each contention as it may arise, in order to illustrate the question then under consideration.

2. We will first discuss the issue which concerns a note made by the court in overruling the motion for a new trial. The occasion which brings this contention into the issue is that the defendant contended in his motion that a verdict of voluntary manslaughter was unauthorized by the evidence, whereupon the court attached upon the amended motion the following note: 'Note by the Court: Both counsel for novant and for the State in their arguments took the position and argued to the jury that this case was one of either murder or justifiable homicide.'

It is the contention of the State that since counsel for the defendant argued to the jury that his client was guilty of murder or justifiable homicide, that the defendant could not legally in his motion for a new trial assign error upon a verdict of voluntary manslaughter. This is on the theory that since counsel for both the defendant and the State contended in their arguments that under the evidence only one or two possible verdicts could be returned, guilty of murder or not guilty of any offense. In the beginning, it seems to us quite clear tht if there was error on the part of the Court in charging voluntary manslaughter because there was no evidence to support such a verdict, that the Court was not led into error by the contentions of either counsel for the State or for the defendant. This simply for the reason that the Court did not follow the arguments of either the State or the defendant, to the jury, and charged voluntary manslaughter against the contentions of both sides. Therefore, if any error there be in the charge, the trial court in responsible. It would be different if counsel for the defendant upon inquiry by the Court or otherwise, had stated to the Court that his position was, under the evidence, that his client was guilty of murder or justifiable homicide. Counsel for the State submitted to sustain his position the cases of Brown v. State, 150 Ga. 756, 10k S.E. 289; Threlkeld v. State, 128 Ga. 660, headnote 1, 58 S.E. 49; Tanner v. State, 163 Ga. 121, 135 S.E. 917; Coney v. State, 90 Ga. 140, 142, 15 S.E. 746. A careful reading of these cases under their facts, did not sustain the position of the State. The instant case is controlled by Hill v. State, 147 Ga. 650, 95 S.E. 213; Andrews v. State, 134 Ga. 71, 67 S.E. 422; Horton v. State, 120 Ga. 307, 47 S.E. 969; Perry v. State, 185 Ga. 408, 195 S.E. 175. So it is under the facts of this case and the law applicable thereto, that the defendant is not estopped from assigning error on the ground that the evidence does not support a verdict of voluntary manslaughter and neither was there any error or impropriety in the court submitting the principles of voluntary manslaughter, providing the evidence sustained the charge under the indictment. As to whether it did or did not, we will discuss this question later.

3. We will now discuss the amended grounds of the motion for a new trial in their order. The first ground of the amended motion assigns error upon the failure of the court to charge the offense of involuntary manslaughter in the commission of an unlawful act. Without going generally into the evidence, it shows that the deceased came to his death by a blow with the fist or hand on the head, which knocked him to the ground, and while on the ground he was kicked two or three times with a shod foot and that he had bruises about his head and body and concerning which blows the doctors testified produced his death. As to this, there seems little controversy. There is evidence which would authorize the jury to find that the blows caused the death of the deceased without any intention to take his life. At least the record reveals there was a doubt as to whether or not the blows were inflicted with or without the intention to kill. If without, it would be involuntary manslaughter either in the commission of an unlawful act or in the commission of a lawful act without due caution and circumspection. It must be kept in mind that the evidence does not reveal that the weapon used was a deadly weapon per se, in the manner ordinarily used to kill. But there are weapons too numerous to name not deadly per se, but which may produce death, or which are likely to produce death when used in such a manner as could or does produce death. The latter class of...