Robinson v. State

• Decision Date: 16 August 1907
• Citation: 58 S.E. 842,129 Ga. 336
• Parties: ROBINSON. v. STATE.
• Court: Georgia Supreme Court

58 S.E. 842

(129 Ga. 336)

ROBINSON.

v.STATE.

Supreme Court of Georgia.

Aug. 16, 1907.

1. Criminal Law — Instructions — New Trial.

A verbal inaccuracy occurring in a charge, and immediately thereafter corrected, furnishes no ground for a new trial.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 1994, 1995.]

2. Homicide—Instructions.

Where the only issue presented by the evidence was that of murder or justifiable homicide, the presiding judge correctly omitted to charge on the subject of voluntary manslaughter.

3. Same—Malice.

If the fact of a voluntary homicide is shown, unaccompanied by any circumstances of excuse or extenuation, malice is presumed.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 26, Homicide, § 268.]

4. Criminal Law — Instructions — Assumption op Facts.

Where the evidence showed without controversy or conflict that the deceased was shot by the accused, and the latter in his statement admitted that such was the fact, but sought to justify the act, there was no error in charging that, if the jury had a reasonable doubt as to whether the accused acted, when he shot, under circumstances calculated to excite the fears of a reasonable man, he should be acquitted. Such a charge was not open to objection on the ground that it contained an expression on the part of the court that the fact that the shooting of the deceased by the accused had been proved.

5. Same—Bill op Exceptions—Exhibits.

Affidavits, attached as exhibits to a bill of exceptions after the certificate of the presiding judge, and not identified by his signature thereon, cannot be considered as evidence; and a ground of a motion for a new trial which is dependent upon such evidence cannot be considered.

6. Same—Statement of Accused.

Whether the presiding judge will permit counsel for the accused to call the attention of the latter, while making his statement or at its close, to some subject claimed to be pertinent to the case, and as to which he has made no statement, or whether the court will afterwards allow the accused to make a second statement touching such subject, are matters which must rest in the discretion of the judge. In the present case it cannot be said that such discretion was abused. (Syllabus by the Court.)

Homicide—Malice.

The ruling stated in the third headnote is a correct statement of law, but it is not applicable to the facts of this case. The evidence offered by the state to prove the homicide showed that the fatal shots were fired under such circumstances as rendered it proper to submit the question to the jury whether the defendant acted under the fears of a reasonable man that a felony was about to be committed upon his person. If the defendant shot the deceased, induced by such fears, there could be no malice; and under the ruling in the case of Mann v. State, 124 Ga. 700, 53 S. E. 324. 4 L. R. A. (N. S.) 934, the court should not have charged that malice was presumed upon proof of the killing. (Per Atkinson, J., dissenting.)

Error from Superior Court, Polk County; Price Edwards, Judge.

Ed Robinson was convicted of murder, and brings error. Affirmed.

Janes & Hutchens and Wm. Janes, for plaintiff in error.

W. K. Feilder, Sol. Gen., and Jno. C. Hart, Atty. Gen., for the State.

LUMPKI, J. N1. Ed Robinson was indicted and convicted of the offense of murder. His motion for a new trial was overruled, and he excepted. The motion and amended motion contained 21 grounds. Most of them present no question which it is necessary to discuss, and as to them it will suffice to say that none of them require a new trial. Only a few need be specially mentioned. In some of them there may have been slight verbal inaccuracies, or inapt expressions. Thus, at one time, in defining malice, the presiding judge said: "It is a deliberate intention unlawfully to take away human life, whether it springs from hatred, ill will, revenge, ambition, or drunkenness even, if such should be the case." But he at once corrected himself and informed the jury that there was no question of drunkenness arising under the evidence.

2. There was no evidence requiring a charge on the subject of manslaughter. The evidence showed that the man killed and a woman had been living together in unlawful cohabitation, but had separated. On the night of the homicide he went to the door of her house and knocked. When first asked who he was, he gave a false name, but subsequently gave his own name, and called the woman to the door. When she unlocked it, he pushed it open and entered the room, saying several times, "Strike a match." The defendant was in the room, and in bed at the time, though it was claimed that he was occupying a different bed from that in which the woman slept. Upon the deceased calling for a match, the accused fired twice with a pistol, killing him. There was no evidence that the deceased had any weapon. There was some evidence, introduced by the defend ant, that the deceased had previously made tnreats as to what he would do if he caught any man in the room with the woman, and that the threats had been communicated to the defendant The issue presented was murder or justifiable homicide. Presumably the presiding judge charged correctly on that issue, including the doctrine of reasonable fears. But there is nothing in the evidence which made it erroneous not to charge the law iu regard to voluntary manslaughter.

3. The court charged as follows: "When a homicide or killing is shown, the law presumes malice. So, if you find from the testimony that, beyond a reasonable doubt, the defendant, Ed Robinson, in the county of Polk, on the day named in the bill of indictment, or at any other time before the finding of the bill of indictment in this case, did unlawfully, willfully, and of his malice aforethought kill and murder Charlie Holifield, by shooting him, the said Charlie Holifield, with a certain pistol, as charged in the bill of indictment, and nothing further appears in the case, it would be your duty to find the defendant guilty." At other parts of bis charge he also referred to the presumption of malice from the commission of the homicide. Under the facts presented by the evidence, there was no error in the charge. The case is controlled by that of Mann v. State, 124 Ga. 760, 53 S. E. 324, 4 L. R. A. (N. S.) 934. In that case Mr. Justice Evans said: "In the first instance, when the fact of a voluntary homicide is shown, unaccompanied by any circumstances of excuse or extenuation,...