Delk v. State , 135 Ga. 312 ( 1910 )

Lumpkin, J.

Bill Dellc was indicted for the murder of Christopher Vining. He was found guilty, and recommended to life imprisonment. ' He moved for a new trial, which was refused, and he excepted.

1. The law relating to the presumption of malice arising from a voluntary homicide, where the evidence adduced to establish the homicide does not negative the existence of malice, and of the burden on the prisoner, to show circumstances of alleviation or justification, unless they appear from the evidence adduced against him, is thoroughly discussed in the case of Mann v. State, 124 Ga. 760 (53 S. E. 324, 4 L. R. A. (N. S.) 934). The charge in the present case on that subject urns along the line there indicated, except that it omitted any reference to mitigation or alleviation, and also omitted the last qualifying clause stated, namety, unless such circumstances appear from the evidence produced against him. The testimony of the witnesses for the State was such that the charge should not have impliedly excluded the accused from relying on it The court instructed the jury that, where the killing was shown, the burden was upon the party killing “to show that he was justified under some rule of law,” thus throwing upon the defendant the burden of showing complete justification.

2.. The court charged the jury as follows: “In all criminal cases the defendant has the right to make to the court and jury such statement as he may see fit to make in his own defense. That .statement is not under oath, and the jury may give to it such weight and credit as they may see fit. The3r may believe it in preference to the sworn testimony in the case, or they may disregard it entirely. Tt is -a matter for you to determine what weight and credit to give to the defendant’s statement. Jurors have no right to captiously set aside and disregard a witness’s testimony. It is their duty to believe a witness, unless that witness has been impeached, or his testimony set aside by some method known to the law,- You are to do your duty whatever it is. It is not a question of sentiment or sympathy; it is a question of finding the truth of this case and determining it, under the evidence and the rules of law given you in charge by the court.” This placed in unfortunate juxtaposition the right of the jury to credit the unsworn statement of the accused, and the duty of the jury to believe a witness unless impeached. An examination of the entire charge does not seem to remove the possible misapprehension which may have arisen in their minds from telling them, in effect, in the same breath, that they might believe the accused, but they must believe the witness unless impeached. Were the charge accurate in other respects, we need not determine whether this would necessitate a new trial; but as a reversal must be had, we call attention to it in order that it may not occur again.

3. The court also charged as follows: “I charge you further, that if you find he stuck his gun against the deceased and purposely punched him with it, and you find that this is an act which naturally tends to destroy human life, and shot that gun in that way, then I charge you that he would be guilty of murder, whether he intended to shoot the deceased or not. If you find that that was an act which naturally tends to destroy human life, then it makes no difference whether he knew the gun was loaded or not, he would still be guilty of murder under circumstances of that kind, and you should so find.” Again, in charging on the subject of accident, he said: “If you are not satisfied of his guilt of either of the offenses (murder or involuntary manslaughter'), if he did not jab the deceased or punch him, did not intend to push him with the gun, but that the killing was simply the result of an accident, he would not be guilty of any offense, and you should acquit him.” .The effect of these charges was to instruct the jury that even if they should find that the accused did not know that the gun was loaded but believed it to be empty, and did not intend to shoot the deceased, but simply to punch him with it, and it was accidentally discharged, this would make no difference in finding him guilty of murder. This was not an accurate statement of the law. If a deadly weapon is used in the commission of a homicide, and it appears that the weapon was used in the manner in which such weapons are ordinarily used to kill, then the law would presume an intention to kill. But a deadly weapon may be used in such a manner as not necessarily to raise such a presumption, but to leave the intent as a question of fact for the jury. Thus, to strike one with the barrel of a pistol instead of shooting him with the weapon, or to strike with the handle of a dirk instead of with the blade, would not be the ordinary way of using such a weapon to kill, and the intention to kill would be rather a question of fact than of presumption. Hanvey v. State, 68 Ga. 612; Lewis v. State, 72 Ga. 164 (53 Am. R. 835); Scott v. State, 132 Ga. 357 (64 S. E. 272).

In Austin v. State, 110 Ga. 748 (36 S. E. 52, 78 Am. St. R. 134), it was held that if a person recklessly discharges ,a gun at another, and death results therefrom, or recklessly discharges a gun into a crowd, although at no particular person, and death results, such killing is murder; but that if death results to one from the discharge of a gun in the hands of another, and there is no intention to kill nor an intention to discharge the gun, the person in whose hands the gun was held would not be guilty of murder, although it may have been handled in a reckless and negligent manner. See also Roberts v. State, 112 Ga. 542 (37 S. E. 879). Cf course,' if an involuntary killing happens in the commission of an unlawful act which in its consequences naturally tends to destroy the life of a human being, the offense would be deemed murder. Penal Code, § 67. But we think that the charge of the court was such as to lead the jury to make no distinction between punching or jabbing a man with a gun, if believed to be unloaded, and intentionally shooting at him. It undertook to instruct them too closely as matter of law the concrete effect of punching a man with a gun, instead of leaving the question of intent, and of unintentional homicide in the commission of an unlawful act naturally tending, to destroy human life, more broadly to the jury.

As the case will be returned for a new- trial, we do not deal with the question of the sufficiency of the evidence, or the mere question of verbal accuracy in setting out the contentions of the State.

Judgment reversed.

All the Justices concur.