Morgan v. State

Supreme Court of Georgia

Morgan v. State

46 S.E. 836, 119 Ga. 566, 1904 Ga. LEXIS 286

CourtSupreme Court of Georgia

DecidedMarch 3, 1904

StatusPublished

Cited by15 cases

This text of 46 S.E. 836 (Morgan v. State) is published on Counsel Stack Legal Research, covering Supreme Court 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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Morgan v. State, 46 S.E. 836, 119 Ga. 566, 1904 Ga. LEXIS 286 (Ga. 1904).

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Opinion

Lamar, J.

(after stating the foregoing facts.) The defendant was charged with assault with intent to murder, but found guilty of the lesser offense of stabbing. On a careful examination of the evidence we are forced to the conclusion that there was evidence sufficient to sustain the verdict. Nor can a new trial be granted [568]*568because the judge gave the charge, on the defendant’s statement, similar to that complained of in Hackett v. State, 108 Ga. 46. It is true that this court has said that it would be better in all cases to give in charge the statute and there leave the matter. Hendricks v. State, 73 Ga. 581; Ozburn v. State, 87 Ga. 185, 186. And in Harrison v. State, 83 Ga. 136, Chief Justice Bleckley said: “ But why should the presiding judge be more specific than the statute itself, or go.,beyond its terms ? There is no obscurity or ambiguity in the statute. The legislature has made the matter as clear as canche judiciary. Why should not the legislature be left to address the jury in its own language ? ” These observations would indicate that a departure from the language of the statute, harmful to the defendant, would be cause for the grant of a new trial, but for the decisions in Hackett v. State, 108 Ga. 46, and Teasley v. State, 105 Ga. 842, to both of which Little, J., indicated his dissent. The charge is not an improper argument foi counsel; but, coming from the mouth of the judge, it is undoubtedly calculated to greatly prejudice the defendant to have the jury’s attention directed to the fact that he is not under oath, under no penalty to speak the truth, and is not subject to cross-examination without his consent; and for the jury to be told also to consider his interest in the case and determine what faith they should give the statement. Nevertheless just such a charge was held not to be ground for a new trial, in Hackett v. State, supra.

Mere inequality in size and strength will not authorize the1 smaller combatant to resent the blow by stabbing the assailant. The charge of the court was in accordance with the ruling in Floyd v. State, 36 Ga. 91. Compare Malone v. State, 77 Ga, 768 (6); Hinch v. State, 25 Ga. 699 (2).

We find no error in the other charges excepted to.

Judgment affirmed.

All the Justices concur, except Simmons, C. J., absent.

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Lamar, J.

(after stating the foregoing facts.) The defendant was charged with assault with intent to murder, but found guilty of the lesser offense of stabbing. On a careful examination of the evidence we are forced to the conclusion that there was evidence sufficient to sustain the verdict. Nor can a new trial be granted [568]*568because the judge gave the charge, on the defendant’s statement, similar to that complained of in Hackett v. State, 108 Ga. 46. It is true that this court has said that it would be better in all cases to give in charge the statute and there leave the matter. Hendricks v. State, 73 Ga. 581; Ozburn v. State, 87 Ga. 185, 186. And in Harrison v. State, 83 Ga. 136, Chief Justice Bleckley said: “ But why should the presiding judge be more specific than the statute itself, or go.,beyond its terms ? There is no obscurity or ambiguity in the statute. The legislature has made the matter as clear as canche judiciary. Why should not the legislature be left to address the jury in its own language ? ” These observations would indicate that a departure from the language of the statute, harmful to the defendant, would be cause for the grant of a new trial, but for the decisions in Hackett v. State, 108 Ga. 46, and Teasley v. State, 105 Ga. 842, to both of which Little, J., indicated his dissent. The charge is not an improper argument foi counsel; but, coming from the mouth of the judge, it is undoubtedly calculated to greatly prejudice the defendant to have the jury’s attention directed to the fact that he is not under oath, under no penalty to speak the truth, and is not subject to cross-examination without his consent; and for the jury to be told also to consider his interest in the case and determine what faith they should give the statement. Nevertheless just such a charge was held not to be ground for a new trial, in Hackett v. State, supra.

Mere inequality in size and strength will not authorize the1 smaller combatant to resent the blow by stabbing the assailant. The charge of the court was in accordance with the ruling in Floyd v. State, 36 Ga. 91. Compare Malone v. State, 77 Ga, 768 (6); Hinch v. State, 25 Ga. 699 (2).

We find no error in the other charges excepted to.

Judgment affirmed.

All the Justices concur, except Simmons, C. J., absent.

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46 S.E. 836, 119 Ga. 566, 1904 Ga. LEXIS 286, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morgan-v-state-ga-1904.

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