Hill v. State , 164 Ga. 298 ( 1927 )

Beck, P. J.

John Hill was indicted by the grand jury of Wayne County for the offense of murder. It was charged in the indictment that on the 3rd day of July, 1926, he did unlawfully, feloniously, and wilfully and with malice aforethought murder Dan Westberry by shooting him with a pistol. Upon the trial of the accused under this indictment the jury returned a verdict of guilty, with a recommendation. The accused made a motion for a new trial* containing the usual general grounds, and subsequently filed an amendment to the motion containing special assignments of error, among them being exceptions to the following charges of the 'court:

“Now, gentlemen of the jury, you understand that the contention of the State in this case is that without fault, such fault as authorized or justified the defendant in doing so, the defendant killed the deceased wilfully and feloniously and without any justification. The State contends that the defendant killed the deceased maliciously. By malice is not meant personal ill-will and hatred, and that is understood by you gentlemen with respect to homicide cases, but is that deliberate intention unlawfully to take away the life of-a fellow creature undfer circumstances where the law will neither justify nor mitigate the taking of such life.”

“If you should find that the defendant killed the deceased unlawfully, that he did so maliciously and feloniously and without any sufficient reason or excuse to justify him in doing so under the law, he would be'guilty of murder and should be found so by the jury.

“Now further, gentlemen, in this case if you should find that the deceased, Westberry, was killed by the defendant, Hill, should find that he was killed by him unlawfully and not under circumstances of justification, but should find that an assault was made upon the person of the defendant by the deceased, or an attempt made to commit a serious personal injury on the person of the defendant, Hill, by the alleged deceased, Westberry, or that there were other equivalent circumstances at the time sufficient to justify the excitement of passion and as a result of an assault or an attempt to commit a personal injury upon him, or other equivalent circumstances existed, or as the outgrowth of a mutual fight entered into mutually between the parties, each mutually agreeing to enter into such fight, and out of which death resulted, if you find that death did result, then under those circumstances you would be authorized and it would be proper for you to find the defendant guilty of voluntary manslaughter, if you find that the defendant killed the deceased 'unlawfully and killed him under such circumstances as to bring the case within the rule of manslaughter as given to you in charge.”

The court overruled the motion and refused a new trial. Thereupon the plaintiff in error excepted.

In the fourth ground of the motion for a new trial error is assigned upon the following charge of the court: “Manslaughter is defined to be the unlawful killing of a human creature without malice, either express or implied, and without any mixture of deliberation whatever; and one of the grades of manslaughter is voluntary manslaughter.” This charge is excepted to upon the ground that the court failed to charge the law of voluntary manslaughter as it is contained in section 64 of the Penal Code, and especially in that it omitted that portion of the section which reads, “which may be voluntary, upon a sudden heat of passion.” When that part of the charge quoted above is read in connection with the context, it will be seen there is no merit in the exception. Upon the subject of voluntary manslaughter the court charged as follows: “Manslaughter is defined to be the unlawful killing of a human creature, without malice either express or implied, and without any, mixture of deliberation whatever; and one of the grades of manslaughter is voluntary manslaughter; and with respect to voluntary manslaughter it is provided that, in order to reduce a killing that would otherwise be murder from murder to voluntary manslaughter, there must be some actual assault upon the person killing, or an attempt by the person killed to commit a serious personal injury upon the person killing, or other equivalent circumstances to justify the- excitement of passion, and to exclude all idea of deliberation or malice, either express or implied. A provocation by words, threats, menaces, or contemptuous gestures shall in no case be sufficient to free the person killing from the guilt and crime of murder. The killing must be the result of that sudden, violent impulse of passion supposed to be irresistible; for if there should have been an interval between the assault or provocation given and the homicide, of which the jury shall in all cases be the judge, sufficient for the voice of reason and humanity to be heard, the killing shall be attributed to deliberate revenge, and be punished as murder.” From the reading of this part of the court’s charge it will be seen that the jury were instructed, in effect, that where the killing is the result of that sudden, violent impulse of passion supposed to be irresistible, this would reduce the killing from murder to voluntary manslaughter, provided there were circumstances justifying the excitement of passion such as would under the law reduce the killing from the higher to the lower grade of homicide.

The rulings made in headnotes 2, 3, 4, and 5 require no elaboration.

The portions of the charge not specially considered above are set forth in the statement of facts, but the exceptions to them are without merit, and it is not necessary to further discuss them.

Judgment affirmed.

All the Justices concur.