Dorsey v. State

55 S.E. 479, 126 Ga. 633, 1906 Ga. LEXIS 494

• Court: Supreme Court of Georgia
• Decided: November 9, 1906
• Status: Published

Opinion

Cobb, P. J.

(After stating the foregoing facts.) The judge instructed the jury fully on the law of murder, voluntary 'manslaughter, and homicide resulting from reasonable fears by the slayer, as well as homicide resulting from mutual combat. The charge contained no reference whatever to the law of involuntary manslaughter. One of the assignments of error is based upon the failure of the judge to instruct the jury upon this subject, and this assignment is strenuously insisted upon by counsel. The weapon used was before the jury, and it was for them to determine, by an inspection of the weapon, whether it was one likely to produce death. The jury should have been fully instructed as to their duties in reference to this question; and the law applicable to any phase of the ease resulting from their finding as to the character of the weapon should have been embraced in the instructions of the judge. If they found that the weapon used was one likely to produce death, in the manner in which it was used, then, if the accused was not justified under some rule of law in using the weapon 'in the manner and at the time at which he used it, he would be guilty of murder or of voluntary manslaughter, according to whether they believed that the blow was struck from malice, or as a result of passion not brought about by words alone. If the jury should find that the weapon was one which would not ordinarily produce death, and therefore was not a deadly weapon, and the circumstances demonstrated to the satisfaction of the jury that there was no intention to kill, then, even though the blow was not justified, the accused would be guilty only of the offense of involuntary manslaughter; the grade of which he would be convicted to be determined by whether the blow was inflicted as a result of an unlawful act, or whether, under the circumstances, he was justified in striking a blow, but in administering it did not use due care and circumspection. Under one view of the evidence the law of involuntary manslaughter in the commission of an unlawful act was certainly involved. It is not altogether clear that the lower grade of involuntary manslaughter was really involved in the case. The failure of the judge to instruct the jury upon the higher grade of involuntary manslaughter was such an error as constrains us to reverse the judgment refusing a new trial. See Taylor v. State, 108 Ga. 389; Farmer v. State, 112 Ga. 80; Chapman v. State, 120 Ga. 855; Jordan v. State, 124 Ga. 780. We do not deem it necessary to discuss at length the other assignments of error, for none of them alone would have required a reversal of the judgment, and any error that may have been committed in the instructions or in the admission of evidence will no doubt be corrected on another trial.

Judgment reversed.

All the Justices concur.