Thorpe v. State

• Citation: 17 S.E. 693,92 Ga. 470
• Parties: THORPE v. STATE.
• Decision Date: 15 May 1893
• Court: Georgia Supreme Court

17 S.E. 693

92 Ga. 470

THORPE v. STATE.

Supreme Court of Georgia

May 15, 1893

Syllabus by the Court.

1. The evidence was ample to prove the corpus delicti, and to warrant a verdict of guilty. There was no error in refusing to charge the jury as requested, and no cause for a new trial.

2. In order for counsel for a plaintiff in error, as matter of legal right, to protect himself against the payment of costs in this court, it is necessary that a proper pauper affidavit, made by his client, and filed in the court below before the transcript of the record is certified, should be by copy thereof, embraced in the transcript; and this court will not exercise any discretion it may have to allow the proper affidavit to be filed and sent up afterwards, where the case is absolutely without merit, and consequently one which should never have been brought up for review on any terms.

Error from superior court, Chatham county; Robert Falligant, Judge.

Samuel Thorpe was convicted of murder, and brings error. Affirmed.

On the trial the court refused to give in charge the following, as requested: "That it is not necessary that the person killing should have sustained an actual assault by the person killed, in order to reduce the killing to manslaughter, but that any circumstances that reasonably cause a sudden violent impulse of passion, supposed to be irresistible under the influence of which the homicide is committed, will reduce the crime to voluntary manslaughter. That, if the jury has a reasonable doubt of the prisoner having premeditated this act, then it is their duty to give the prisoner the benefit of that doubt, and that in the absence of such premeditation the killing cannot be murder. That if the jury is in doubt as to which of two crimes the accused is guilty, under the evidence, they should convict the accused of the lesser offense. That, in order that malice may be implied, two things must occur, to wit, (1) that there was no considerable provocation; and (2) that all the circumstances indicate an abandoned and malignant heart. That, if the killing was without malice,--that is, if it was done without a deliberate intent unlawfully to take human life,--then it was not murder; if done without malice, upon a sudden heat of passion, then it was voluntary manslaughter."

Cain & Kennedy and John Nicolson, Jr., for plaintiff in error.

W. W Osborne, W. W. Fraser, Sol. Gen., and J. M. Terrell, Atty....