Barnes v. State

100 S.E. 788, 24 Ga. App. 372, 1919 Ga. App. LEXIS 676

• Court: Court of Appeals of Georgia
• Decided: November 6, 1919
• Docket: 10552
• Status: Published

Opinions

Bloodworth, J.

1. The indictment in its formal parts followed section 954 of the Penal Code of 1910. It also named the accused, showed the date and the venue of the offense, and further alleged that the accused “did . . unlawfully and with malice aforethought kill and murder [a named person] by shooting him . . with a pistol.” Such an indictment sufficiently charges the offense of murder. Thomas v. State, 71 Ga. 47, 48 (5). It also embraces the minor offense of voluntary manslaughter. Reynolds v. State, 1 Ga. 222 (1); Watson v. State, 116 Ga. 607 (43 S. E. 32). Notwithstanding the language of the code-sections defining these offenses, it is not necessary to allege in the indictment that the accused was “of sound memory and discretion,” or that the person killed was “a human being,” or was “in the peace of the State.” Dumas v. State, 63 Ga. 600 (1); Sutherland v. State, 121 Ga. 591 (49 S. E. 781). The demurrer to the indictment was therefore properly overruled.

Decided November 6, 1919.

Conviction of manslaughter; from McDuffie superior court— Judge Henry C. Hammond. April 1, 1919.

Application for certiorari was denied by the Supreme Court.

Sam L. Olive, Hines, Hardwick & Jordan, B. J. Stephens, for plaintiff in error. A. L. Franklin, solicitor-general, J. P. Burnside, John T. West, John M. Graham, contra.

2. Pending a motion for a new trial by one Who has been indicted for murder and been convicted of voluntary manslaughter, it is within the sound discretion of the presiding judge to grant or refuse admission to bail upon application therefor by the movant. Crumley v. Gibbs, 149 Ga. 119 (99 S. E. 297).

3. While the prisoner alone can put his general character in issue in any criminal case, yet he can do so as effectively by his statement to the court and jury as by sworn testimony introduced in his behalf. Jackson v. State, 76 Ga. 551; Doyle v. State, 77 Ga. 515 (2) ; Crawley v. State, 137 Ga. 777 (74 S. E. 537).

4. In any criminal case evidence may be offered by the State to rebut any material fact asserted by the prisoner in bis statement to the court and jury. Doyle v. State, supra; Goolsby v. State, 133 Ga. 427 (2) (66 S. E. 159). Good character is such a fact (Shropshire v. State, 81 Ga. 589, 8 S. E. 450), and an assertion of good character by the prisoner in his statement, or a narrative therein of facts, with an argument deduced therefrom to show his general good character, authorizes the introduction of evidence to the contrary.

5. In view of the principles announced in the two preceding paragraphs, that portion of the prisoner’s statement set out in the record put his general character in issue, and authorized the introduction of evidence to the contrary.

6. It was not error to refuse the request to charge on disparity of size. Alexander v. State, 118 Ga. 26, (3), 28 (44 S. E. 851). See Strickland v. State, 98 Ga. 84 (25 S. E. 908). (Luke, J., dissents.)

7. All the assignments of error have been considered; the evidence authorized the verdict, and for no reason assigned was it error to overrule the motion for a new trial.

Judgment affirmed.

Broyles, G. J., concurs. Luke, J., dissents.