Whitfield v. State

• Court: Georgia Supreme Court
• Writing for the Court: ATKINSON
• Citation: Whitfield v. State, 69 S.E. 114, 135 Ga. 248 (Ga. 1910)
• Decision Date: 13 October 1910
• Parties: WHITFIELD v. STATE.

69 S.E. 114

(135 Ga. 248)

WHITFIELD

v.STATE.

Supreme Court of Georgia.

Oct. 13, 1910.

(Syllabus by the Court.)

1. Homicide (§ 309^*) — Evidence — Involuntary Manslaughter—Instructions.

The statement of the accused did not present the theory of involuntary manslaughter in the commission of a lawful act without due caution and circumspection; and a discussion of whether, if it had done so, the charge of the court on the theory of accident (which was involved) would have been erroneous, without going further and also charging as to the first-stated theory, would be academic as applied to this case. Leonard v. State, 133 Ga. 435, 66 S. E. 251.

[Ed. Note.—For other cases, see Homicide, Cent. Dig. §§ 649-656; Dec. Dig. § 309.*]

2. Grounds for New Trial.

None of the other grounds of the motion for a new trial require a reversal.

Holden, J., dissenting.

Error from Superior Court, Washington County; B. T. Rawlings, Judge.

Willie Whitfield was convicted of murder, and brings error. Affirmed.

A. R. Wright, for plaintiff in error.

Alfred Herrington, Sol. Gen., Hines & Jordan, and H. A. Hall, Atty. Gen., for the State.

ATKINSON, J. Judgment affirmed. All the Justices concur, except

HOLDEN, J. (dissenting). 1. The defendant in his statement said he had a pistol in a case in his pocket, and that the deceased "grabbed the pistol, and when she grabbed it, I grabbed hold of it, too, this way. I grabbed the pistol, and time I whirled to throw her off from me I whirled it around in her back this way as I throwed her off, and it fired right off. It fired off right along here somewhere." He gave no other explanation of the cause of the discharge of the pistol. The statement of the defendant authorized a charge upon the subject of involuntary manslaughter in the commission of a lawful act without due caution and circumspection. Nathan v. State, 131 Ga. 48, 61 S. E. 994.

2. The evidence did not authorize a charge upon the theory that the killing was an accident for which the defendant was not liable to punishment, nor upon the subject of involuntary manslaughter; but the statement of the defendant authorized a charge upon both; and the same language in the statement authorizing the charge upon one authorized the charge upon the other. It is not error requiring a new trial for the court to omit to charge upon any theory raised solely by the defendant's statement, in the absence of a proper request to so charge; but, where the court undertakes to charge upon a theory arising from the statement of the defendant, he should fully and correctly charge thereon. It was, accordingly, error requiring a new trial for the court to fail to chargeupon the subject of Involuntary manslaughter, after charging upon the theory of accident or misfortune, and instructing the jury, if they...