McIntosh v. State

Court of Appeals of Georgia

McIntosh v. State

14 S.E.2d 235, 64 Ga. App. 775, 1941 Ga. App. LEXIS 517

CourtCourt of Appeals of Georgia

DecidedApril 4, 1941

Docket28631

StatusPublished

This text of 14 S.E.2d 235 (McIntosh v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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McIntosh v. State, 14 S.E.2d 235, 64 Ga. App. 775, 1941 Ga. App. LEXIS 517 (Ga. Ct. App. 1941).

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Opinion

MacIntyre, J.

1. The defendant was jointly indicted with his son for murder, and was convicted of voluntary manslaughter. The judge erred in charging the jury as follows: “If you find from the evidence, including the defendants’ statements in this case, that the deceased was an officer, a bailiff, and without warrant or legal authority, or that he was only a private individual, who sought to arrest the defendant, Perry McIntosh [defendant’s son who was jointly tried with defendant and convicted of murder], then Perry McIntosh would have had the right to have resisted such arrest with force proportioned to that being used by the officer, and no more. If you find that he did this, and killed Charlie Wood [who was attempting an unlawful arrest of Perry McIntosh], and the hilling was without malice, then he would not [776]*776be guilty of any offense, and you should acquit.” (Italics ours.) Under the ruling of the Supreme Court in McIntosh v. State, 191 Ga. 736 (13 S. E. 2d, 770), this charge was erroneous, “because of the qualification ‘and the killing was without malice/ If the other stated conditions existed, the defendant should have been acquitted, regardless of the question of malice.” Therefore we adhere to this ruling of the Supreme Court, which was rendered on March 15, 1941, after our opinion was delivered; and on rehearing we withdraw our former judgment affirming the conviction, and substitute this opinion in lieu thereof.

2. The other grounds argued refer to matters which will not likely occur on another trial, and need not be considered.

Judgment reversed.

Broyles, C. J., and Gardner, J., concur.

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MacIntyre, J.

1. The defendant was jointly indicted with his son for murder, and was convicted of voluntary manslaughter. The judge erred in charging the jury as follows: “If you find from the evidence, including the defendants’ statements in this case, that the deceased was an officer, a bailiff, and without warrant or legal authority, or that he was only a private individual, who sought to arrest the defendant, Perry McIntosh [defendant’s son who was jointly tried with defendant and convicted of murder], then Perry McIntosh would have had the right to have resisted such arrest with force proportioned to that being used by the officer, and no more. If you find that he did this, and killed Charlie Wood [who was attempting an unlawful arrest of Perry McIntosh], and the hilling was without malice, then he would not [776]*776be guilty of any offense, and you should acquit.” (Italics ours.) Under the ruling of the Supreme Court in McIntosh v. State, 191 Ga. 736 (13 S. E. 2d, 770), this charge was erroneous, “because of the qualification ‘and the killing was without malice/ If the other stated conditions existed, the defendant should have been acquitted, regardless of the question of malice.” Therefore we adhere to this ruling of the Supreme Court, which was rendered on March 15, 1941, after our opinion was delivered; and on rehearing we withdraw our former judgment affirming the conviction, and substitute this opinion in lieu thereof.

2. The other grounds argued refer to matters which will not likely occur on another trial, and need not be considered.

Judgment reversed.

Broyles, C. J., and Gardner, J., concur.

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14 S.E.2d 235, 64 Ga. App. 775, 1941 Ga. App. LEXIS 517, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcintosh-v-state-gactapp-1941.

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