Gardner v. State , 90 Ga. 310 ( 1892 )

Bleckley, Chief Justice.

In Doyal v. The State, 70 Ga. 147-149, this court recognized the doctrine that the character of the deceased for violence is admissible in evidence only where it is shown prima facie that the accused had been assailed and was honestly seeking to defend himself. In addition to the authorities on the subject cited by Hall, J., in that case, see 1 Criminal Defenses (Horrigan & Thompson), 618 to 696. In the present case, it is manifest that the accused, when the homicide was committed, was not endeavoring to defend himself, but was making and following up an attack which was altogether unnecessary for the immediate protection of his life or person. There is no doubt or obscurity in reference to the facts and circumstances ; the evidence is not conflicting. At the time the moi'tal wound was given, not only was the accused in no immediate danger of any injury, but there was nothing to excite the' fears of a reasonable man that any such danger existed. However desperate the character of the deceased for violence may have been, there was nothing to reduce the homicide to any grade of manslaughter, much less to justify it. There was, consequently, no evidentiary purpose for his bad character to subserve, and the evidence to establish it was properly rejected. When such evidence is admissible at all, its primary object must be to throw light upon the guilt or innocence of the accused, including, of course, the proper grading of his oifenee, should he be guilty of any. When the jury have it before them for this purpose, they may use it as a guide in recommending or forbearing to recommend as to the punishment; but we wholly repudiate the doctrine inculcated by the case of Fields v. The State, 47 Ala. 603, that it may be received and used for the latter purpose only, when inadmissible for the former. The law considers the murder of a bad man no less criminal than the homicide of a good one. All lives are equal; the life of the best is no more sacred against the crime of murder than the life of the worst. When character is not relevant as evidence either to justify or mitigate a homicide, it has no relevancy to the question of punishment. Its tendency to negative or mitigate guilt is the sole reason for considering it in mitigation of punishment; and when that tendency is so completely absent as to require its exclusion on the principal question, the incidental question is disposed of. Any recommendation -which the jnry are competent to make as to punishment is to be made upon such facts as are admissible upon the inquiry as to the crime. The whole investigation to which the evidence is addressed relates to the fact of crime, none of it to the measure of punishment. Such, at least, is the system of criminal procedure in this State, there being no statute which provides for enlightening the jury for the distinct and separate purpose of aiding them in the exercise of their discretion as to punishment. The doctrine of Fields v. The State, supra, has been widely, and we think justly, criticized. Without the least hesitation, we take part with those whose disapprobation of it has been expressed. Many criticisms might be cited, but it is enough to refer to one, 1 Grim. .Defenses, supra, 693.

2. We have already said there was no error in excluding the offered evidence to show the bad character of the deceased for violence. The material facts touching the homicide are indicated in the second head-note. Under these facts, how could bad character for violence afford any substantial aid to the jury in deciding whether the prisoner acted from malice or from a bona fide motive of self-preservation ? To ask the question is to answer it.

3. Nor was there anything in the case to fairly raise any question of manslaughter. Although the deceased desired and intended to make a deadly assault upon the accused, he had not actually made any; he was effectually prevented by a third person from so doing for the time being. While the preventive measures were in progress, and before they had failed of their purpose, the accused voluntarily ran up, shot the deceased, and then pursued him into a house and thei’e inflicted the mortal wound by again shooting him, without any apparent necessity or fresh provocation. All the marks or indicia of manslaughter seem to be wanting; no question as to that grade of homicide was involved in the evidence.

4-5. There was no error in ruling out the opinion of a witness as to what the deceased intended to do with the pistol, nor in overruling the motion for a new trial.

Judgment affirmed.