O'shields v. The State Of Ga.

• Decision Date: 31 January 1876
• Citation: 55 Ga. 696
• Court: Georgia Supreme Court
• Parties: John O'Shields, plaintiff in error. v. The State of Georgia,defendant in error.

55 Ga. 696

John O'Shields, plaintiff in error. v. The State of Georgia, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1876.)

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Criminal law. Evidence. Res gestæ. Charge of Court. New trial, Jury. Before Judge Hopkins. Fulton Superior Court. May Term, 1875.

Reported in the opinion.

*Gartrell & Stephens; W. A. Shorter; T. P. Westmoreland; W. F. Wright, for plaintiff in error.

John T. Glenn, solicitor general, for the state.

Jackson, Judge.

The defendant was indicted for the murder of H. D. Fleming, was found guilty of voluntary manslaughter, and moved for a new trial on various grounds disclosed in the record; the motion was refused on all the grounds, and defendant excepted and assigns error on them all.

The defendant was a policeman, and in company with Jones, another policeman, was on a sidewalk waiting for the time to light or put out lamps on the rising or setting of the moon. Fleming was lying down on the sidewalk, defendant passed by and looked or peeped in his face. Defendant said to him he had better go off or he would be kicked off; deceased made some reply angrily, when defendant said he thought it was a negro or hewould not have made the remark. Deceased was drinking, and the policeman talked after he left about seeing him home or putting him in the guard-house. Deceased went to his brother\'s, waked him up, told him he had been insulted, and asked him to go with him and see him have satisfaction. He and his brother went back. On their way, deceased jerked a piece of paling, two or three inches wide and one thick and some four feet long, and carried it along. They soon met the two policemen, good-evening was said, when deceased made some angry remark and struck at Jones with the paling hitting O\'Shields. The two policemen ran in directions somewhat opposite; deceased and brother were fired upon, and deceased was killed by a pistol ball. The firing was done at some distance from the Flemings. Jones had a pistol which carried a larger ball than defendant\'s. Two balls of different sizes were picked up at the house against which they rebounded or in which they lodged. The smaller ball could be pushed into the hole in the body of deceased made by *the shot which killed; the larger could not. There is some conflict as to the number of shots fired; some witnesses saying three, and one of them four shots; and some on the question whether deceased was advancing on Jones when shot. Jones swore, too, that he shot and killed deceased, and that defendant did not; but the proof is that they were in different parts of the street, and the Flemings rather beween them; and Jones thought and swore that the Flemings, one of them, fired at him; but the proof is conclusive that they were unarmed and did not fire. I have been thus particular in summing up the testimony, because one ground of error is. that the court should have granted the new trial because the verdict is against evidence and without evidence to support it. We do not think so. The smaller ball killed Fleming. O\'Shields\' pistol carried the smaller ball. Jones says O\'Shields did not fire, but he was nearly opposite to O\'Shields, and thought some one shot at him. Neither of the Flemings shot or had anything with which to shoot. The conclusion is almost irresistable that Jones mistook the fire of O\'Shields at the Flemings for a shot from one of them at him, and this reconciles the evidence. Besides three witnesses swear that O\'Shields did shoot; that shots were fired from his stand-point as well as that of Jones; and two balls of different sizes being found rebounded from the wall of the house, would seem to put the evidence beyond doubt that defendant shot, and that his shot killed the deceased.

Is the verdict contrary to law? If his pistol shot killed Fleming, was he justifiable in it? There is no pretense that deceased was advancing upon defendant. There is some evidence that he was advancing upon Jones, though the weight of the evidence is that he was not advancing at all. If he was advancing on Jones, O'Shields could not have been reasonably apprehensive that a felonious assault was about to be made upon him, and that he was in danger of life or limb. Whilst, undersome circumstances, a policeman might be justifiable in defending his colleague, and even in using deadly *weapons in his defense, we do not believe that the facts here warrant such use of the pistol by O\'Shields. The danger from the Flemings seems to have been over, the policemen had got out of the way, and were shooting, as it seems to us, not in defense of each other, but aggressively upon men who turned out to be wholly unarmed, except with the plank. It is true, they were attacked and attacked at night, and violently and suddenly assailed. This circumstance might mitigate, but it...