Griggs v. State

86 S.E. 726, 17 Ga. App. 301, 1915 Ga. App. LEXIS 366

• Court: Court of Appeals of Georgia
• Decided: October 26, 1915
• Docket: 6242
• Status: Published

Opinions

Wade, J.

The evidence in behalf of the State in this ease makes out a clear and unprovoked case of murder. No evidence was offered in behalf of the defendant, but, according to his statement to the jury, he was justified in taking the life of the deceased in order to protect himself from a felonious assault, acting" under the fears of a reasonable man that his life was in jeopardy. According to the wife of the deceased, who witnessed the inception of the tragedy, the slayer and the deceased, while drinking together at the home of the latter, became intoxicated and began quarreling, and the deceased ordered the accused to leave his house; the deceased made no effort to assault the defendant, but followed him to the door as he made his exit, and no threat was made by either, and no attempt made by either to strike the other; the defendant’s horse was tied in front of the house, and after leaving the house the defendant approached the horse and fired his pistol three times “straight up” into the shade-tree to which the horse was hitched; the deceased followed the defendant out to his buggy, and, when the horse became frightened at the pistol shots, he told the defendant he would untie the horse, as it would choke to death; whereupon the defendant declared with an oath that he had money to pay for the horse, and fired upon and killed the deceased without cause or excuse, the latter being unarmed and making no effort to do him any violence. The accused, in his statement to the jury, asserted that he and the deceased were drinking together in the home of the latter, when the deceased attempted to inaugurate a quarrel with him and ultimately threatened him with a gun and pulled out a knife, and apparently was prevented only by the interposition of the wife of the deceased from consummating a deadly assault upon him; that he (the defendant) retreated backwards from the house, backed off the front porch, and fell, went to his horse and buggy, intending to leave the vicinity before any trouble resulted, and, while he was standing there fixing one of the traces, which was loose, the deceased came by with a gun and went beyond to another house, went around the house, and then returned with the gun in his hand and seized and attempted to hold the defendant’s horse, and, when the defendant inquired what his purpose was, replied with an oath that he intended to kill the defendant, and threw up his gun as if about to execute the threat; and thereupon the defendant drew his pistol and fired at and killed the deceased, in order to save his own life.

There was no evidence and nothing in the statement of the defendant to show any actual assault upon the accused by the deceased, or any attempt by the deceased to commit a serious personal injury on the defendant amounting to less than a felony; nor did any other equivalent circumstances appear that might justify the excitement of passion on the part of the defendant and exclude all idea of deliberation or of malice, either expressed or implied. The State’s witnesses asserted that the deceased made no attempt even to assault the defendant, and in fact gave him no provocation whatever; whereas the defendant insisted that the deceased advanced upon him with a deadly weapon when he was seeking peaceably to leave the house of the deceased in order to avoid the ¡Possibility, of a serious quarrel, and that thereafter the deceased made an effort to assault him with a deadly weapon and compelled him, under the fears of a reasonable man, to shoot in order to protect his own life. There was nothing to show that the killing resulted from such a sudden, violent impulse of irresistible passion as might under the law reduce the crime from murder to manslaughter. The statute itself declares that “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;” and to hold that the wordy altercation between the slayer and the deceased while in the house of the latter, or the abusive epithets applied by the deceased to the accused while holding the latter’s horse and declaring his purpose to kill the defendant, could, without more, reduce the homicide from murder to manslaughter, would be to hold, in the teeth of the statute, that the killing of another provoked by words only might amount to less than murder, and would authorize any person aggrieved on account of verbal insults to slay his offender without fear of any more serious punishment than that awarded to one who commits manslaughter by killing his opponent while under the influence of irresistible excitement of passion. Human life is already too cheap to be thus further cheapened; and no matter how vile the epithets or how aggravating the insults or mortifying the accusations to which a person is subjected, if he slay the insulter or accuser for words alone, he must be held guilty of murder, and not of a lesser offense.

There is nothing in the evidence or in the statement of the accused to support the inference that there was a mutual intention to fight, and that the deceased approached the accused after the' latter had left the house in furtherance of that intention; and.the “equivalent circumstances” which under the statute may sometimes justify the excitement of passion and exclude all idea of malice do not include words, threats, menaces, or contemptuous gestures. Penal Code, § 65; Edwards v. State, 53 Ga. 428, 429. Such provocation alone will not justify the excitement of passion that will reduce a homicide from murder to voluntary manslaughter. Heard v. State, 114 Ga. 90 (39 S. E. 909). In this case, as was said in Herrington v. State, 125 Ga. 745 (54 S. E. 748), “The evidence for the State demanded a verdict for murder. The accused introduced no evidence, but his statement,, if credible, authorized an acquittal. There was no view of the evidence or the statement of the accused, under which a verdict for voluntary manslaughter could be legally rendered, and it was error to give in charge the law relating to this grade of homicide. The accused having been convicted of voluntary manslaughter, a new trial must be granted.” Able counsel for the State himself asserts in his brief that “the evidence absolutely warranted a verdict for murder, and the only squint at voluntary manslaughter was in the statement of the plaintiff in error.” Viewing the case from a point of view essentially different from that which a public prosecutor could reasonably be expected to occupy, we are unable to find that the statement of the accused even “squints” at or indirectly suggests manslaughter.

The charge touching the law of voluntary manslaughter was given by the court in compliance with a written request from counsel for the defendant, and therefore the defendant can not now be heard to complain that this charge was inapplicable to the facts in evidence. In Barnett v. State, 136 Ga. 65 (70 S. E. 868), the Supreme Court said: “An irrelevant instruction given at the request of the counsel for the accused is not cause for a new trial; especially so, when it is apparent that such instruction was not prejudicial to the accused.” In that case the trial judge gave (as in this case) instructions covering the law of voluntary manslaughter, in response to a written request on the part of counsel for the accused. In a note attached to the motion for a new trial in that case the judge stated that the charge on manslaughter, which was excepted to as not justified by the evidence, was given at the special instance and earnest request of the prisoner’s counsel, though he was not of the opinion at the time of the trial “that it was exactly fair to the State to charge the various grades of the homicide, and so informed prisoner’s counsel when said request was made, but on reflection complied with said request and gave the charges herein excepted to at the request of counsel as stated.” In the Barnett case, supra, the accused was convicted of murder; so it is obvious that in no event could any harm have resulted to him. In this case it may be suggested that had the court not given in charge the law of manslaughter, the jury may have preferred to acquit him, rather than to find him guilty of murder, and thereby subject him to capital punishment or life-imprisonment, and that therefore the charge touching the law of manslaughter, which was wholly unauthorized by the evidence or the prisoner’s statement, was harmful to the accused because it may have contributed to bring about a compromise verdict against him for the lesser of the two grades of homicide; but the principal reason upon which the ruling in the Barnett case, supra, was based applies equally well in this case; and it might be also said that the charge as to manslaughter may -possibly have saved the accused from a verdict of murder.

In Hicks v. State, 105 Ga. 627, 631 (31 S. E. 579), it is said: “One ground complains of the charge given on the subject of confessions, but the trial judge certifies that this charge was given at the request of counsel for the accused. This being true, counsel are estopped to assign error thereon.” The rule as here expressed appears to us to be sound and reasonable. The accused should not be allowed to invoke through his counsel a ruling which may either contribute to bring about a certain result or may altogether produce that result, and then be permitted to complain that the court erred in doing the identical thing, which he himself requested should be done. If one convicted of crime should ever be estopped from complaining of results brought about by himeslf, assuredly this is such a case. So it is clear to us that all grounds of the motion for a new trial based upon the fact that the court instructed the jury as to the law of voluntary manslaughter are entirely without merit.

"While it is true that the verdict of manslaughter might not have been returned if the court had not given the charge on that subject invoked by the request of counsel for the defendant, and, as already said, the accused can not properly be heard to complain that the court erred in giving the requested charge, even though it was inapplicable to the evidence, nevertheless, if the evidence wholly fails to support the verdict which perhaps resulted in consequence of the requested charge, the accused is not estopped from complaining that the verdict is without evidence to support it, and consequently contrary to law. Able counsel for the defendant may have misunderstood some of the evidence as it fell from the lips of the witnesses during the progress of the trial, and, acting in entire good faith and prompted by the desire to conserve every right to which the accused might be entitled under any phase presented by the testimony, may have made the request believing at the time that manslaughter was involved in the case, though such a conclusion may have proved to be entirely incorrect when the report of the evidence adduced at the trial was thereafter inspected.

Requests on the part of a defendant, for particular instructions to the jury are made at his peril, it is true, where the requests are complied with, since he is estopped from assigning error thereon, though the instructions thus invoked be erroneous and extremely prejudicial to him, but we see no reason why he should be deprived of his right to complain where the instruction invoked by his request authorizes the jury to return a particular verdict which is wholly unsupported by any evidence. A verdict unsupported by some evidence is contrary to law, and it would be farcical to permit ,sucb a verdict to stand merely because the erroneous instruction to the jury which probably led to its rendition was requested by the accused. The accused can not complain of what the court 'did at his request, but he may properly complain of what the jury did, if the evidence fails to support their finding. He can not ask for a reversal because the court yielded to his insistence and charged or presented a theory which the evidence did not authorize; but he is not estopped from complaining that the jury convicted him upon a theory without any evidence to support it. To prescribe a rule so harsh might, as already suggested, permit a verdict of guilty 'to stand where there was absolutely no evidence whatever to support it, and where the accused was asserting his entire innocence of any offense under the law, and it would certainly be an anomaly in criminal jurisprudence. Since, therefore, the evidence in this case does not authorize the verdict returned by the jury, the verdict is contrary to law and must be set aside.

It is unnecessary to enlarge on the various rulings in the head-notes which relate to special assignments of error contained in the amendment to the motion for a new trial. Judgment rev&rsed.