Russell, J.
From our view of the evidence in behalf of the State, we are extremely reluctant to set aside the verdict rendered in this case. The jury evidently credited the State’s witnesses, and their testimony presents a plain case of attempted assassination. The charge of the trial judge to the jury is, in most respects, a model one. Indeed, in some features, the instructions of the court were more favorable to the 'accused than he was entitled to have. And still, since the verdict was not demanded, and these instructions were in conflict with other instructions, which are legally incorrect, and of which complaint is made in the assignments of error, our duty and our obligation to the law requires that the case be remanded for another trial.
1. One of the assignments of error is based upon the following charge: “Joe Wimberly is charged in this indictment with an assault to commit murder upon Doe Kendrick. In considering this proposition, the general proposition as to the guilt of Joe Wimberly of the crime charged in this indictment, of assault with intent to murder, it is necessary for you to consider what is murder; because, had the assault eventuated in the death of Doc Kendrick, and that death had been murder, or the result of this assault had been murder, then, in case the assault did not have that result, it would be an assault with intent to commit murder; in other words, [542]*542had Kendrick been killed at the time and under the circumstances disclosed under this evidence, and that crime had been murder, then, under the evidence in this case, you would be justified in finding the defendant guilty as charged, of an assault with intent to commit murder.”
Under the rulings of this court as well as of the Supreme Court (see Duncan v. State, 1 Ga. App. 118, 58 S. E. 248; McAllister v. State, 7 Ga. App. 541, 67 S. E. 221; Patterson v. State, 85 Ga. 133, 11 S. E. 620, 21 Am. St. R. 152; Gilbert v. State, 90 Ga. 691, 16 S. E. 652; Gallery v. State, 92 Ga. 463, 17 S. E. 863; Lanier v. State, 106 Ga. 368, 32 S. E. 335), it is plain that this instruction is erroneous, and must be held to be so prejudicial as to require the grant of a new trial; that portion of the instruction which imputed to the accused an intent to commit murder not having been expressly withdrawn and specifically corrected. Atlanta & Birmingham Air-Line Railway v. McManus, 1 Ga. App. 306, 307 (58 S. E. 258). Where death results, the law primarily presumes malice on the part of the slayer. The law will charge an evil-doer with all the natural consequences of his unlawful. act which that act has produced, but it will not and can not impute to him, by presumption, an intention to produce a consequence which in fact did not result. Where death does not ensue, the intent to kill can hot be a matter of legal presumption, but must be discovered from the evidence. And as the intent to kill is an absolutely essential element of the offense of assault with intent to murder, its presence at the time of the alleged assault must be proved, and can not be presumed. One who kills can very well be presumed to have intended to kill, because the law presumes that every one intends the result which would naturally and legitimately ensue from the act committed by him. And for this reason the presumption, in a case of homicide, that the slayer intended to kill, is natrrral and logical; but it does not follow, in a ease in which death does not result, that the assailant intended something which did not happen. It is true that the facts and circumstances attending an assault may clearly demonstrate that there was an intent to kill, but the determination of the intent must depend upon proof of those facts and circumstances, and is a matter of inference from the facts, and not a matter of legal presumption. For this reason, in every trial for the offense of assault with intent to murder, the [543]*543jury must be expressly instructed that the burden is upon the State to show, beyond a reasonable doubt, that the alleged assault, if made by the defendant, was made with the specific intent to kill. In the present case it can not be said that the trial judge failed so to instruct the jury. More than once the jury were told that unless they were satisfied that the defendant made the assault with intent to kill the prosecutor, he could not be convicted of assault with intent to murder. And these instructions were couched in language which would perhaps satisfy us that if there was ever a ■case in which there were contradictory instructions and yet the ■ jury could not have been misled, it is the present case; for the trial judge so stressed the correct instructions (as to the necessity of the jury’s being satisfied that the defendant made the assault with the specific intent to kill) that if the jury could make a choice between the conflicting instructions, we would have to assume that they would necessarily infer that the judge did not intend that the instruction of which complaint is made should be considered by them. However, the statement that if they were satisfied that the offense was of such nature that if death had ensued the offense would have been murder, they would be' authorized to convict the accused of assault with intent to murder, was not withdrawn or corrected; and therefore, under the rulings of the Supreme Court as well as of this court (see Savannah, Florida & Western Ry. Co. v. Hatcher, 118 Ga. 273, 45 S. E. 239, and cases cited; Savannah, Florida & Western Ry. Co. v. Canty, ante, 411), the erroneous instruction, not having been withdrawn, must be held to have at least confused the jury and rendered them uncertain as to what the law ripon this point really was. “The attention of the jury was not specially called to the fact that it was intended [by the subsequent instruction] to correct what had previously been said. The jury must take the whole charge as the law, and it is not for them to select one part to the exclusion of another, nor to decide whether one part cures or qualifies .another, without being instructed so to do by the judge.” Savannah, Florida & Western Ry. Co. v. Hatcher, supra.
2. The court correctly instructed the jury that no indignity offered by Doc Kendrick, or even any assault made by him upon the defendant, Joe Wimberly, at the church, would afford justification for. an, assault made by Wimberly upon Kendrick, if the [544]*544previous difficulty had ended. As a matter of law, one who has been insulted, or even assaulted, has no right to seek an occasion, after the personal encounter has ceased, to avenge either the insult or the assault. But, though the law will not justify an assault made in retaliation of a wrong which has been completed, still, in mercy to the frailty of human nature, the gravity of the offense may be mitigated where the assault can be attributed to an impulse of passion supposed to be uncontrollable, if the jury find that sufficient time had not elapsed for the heat of passion to have cooled. Our law, however, makes the jury the exclusive arbiter of what is sufficient “cooling time” (Penal Code, § 365); and, for this reason, the use of the phrase, “an appreciable time,” by the trial judge, was inappropriate and an invasion of the province of the jury.
Free access — add to your briefcase to read the full text and ask questions with AI
Russell, J.
From our view of the evidence in behalf of the State, we are extremely reluctant to set aside the verdict rendered in this case. The jury evidently credited the State’s witnesses, and their testimony presents a plain case of attempted assassination. The charge of the trial judge to the jury is, in most respects, a model one. Indeed, in some features, the instructions of the court were more favorable to the 'accused than he was entitled to have. And still, since the verdict was not demanded, and these instructions were in conflict with other instructions, which are legally incorrect, and of which complaint is made in the assignments of error, our duty and our obligation to the law requires that the case be remanded for another trial.
1. One of the assignments of error is based upon the following charge: “Joe Wimberly is charged in this indictment with an assault to commit murder upon Doe Kendrick. In considering this proposition, the general proposition as to the guilt of Joe Wimberly of the crime charged in this indictment, of assault with intent to murder, it is necessary for you to consider what is murder; because, had the assault eventuated in the death of Doc Kendrick, and that death had been murder, or the result of this assault had been murder, then, in case the assault did not have that result, it would be an assault with intent to commit murder; in other words, [542]*542had Kendrick been killed at the time and under the circumstances disclosed under this evidence, and that crime had been murder, then, under the evidence in this case, you would be justified in finding the defendant guilty as charged, of an assault with intent to commit murder.”
Under the rulings of this court as well as of the Supreme Court (see Duncan v. State, 1 Ga. App. 118, 58 S. E. 248; McAllister v. State, 7 Ga. App. 541, 67 S. E. 221; Patterson v. State, 85 Ga. 133, 11 S. E. 620, 21 Am. St. R. 152; Gilbert v. State, 90 Ga. 691, 16 S. E. 652; Gallery v. State, 92 Ga. 463, 17 S. E. 863; Lanier v. State, 106 Ga. 368, 32 S. E. 335), it is plain that this instruction is erroneous, and must be held to be so prejudicial as to require the grant of a new trial; that portion of the instruction which imputed to the accused an intent to commit murder not having been expressly withdrawn and specifically corrected. Atlanta & Birmingham Air-Line Railway v. McManus, 1 Ga. App. 306, 307 (58 S. E. 258). Where death results, the law primarily presumes malice on the part of the slayer. The law will charge an evil-doer with all the natural consequences of his unlawful. act which that act has produced, but it will not and can not impute to him, by presumption, an intention to produce a consequence which in fact did not result. Where death does not ensue, the intent to kill can hot be a matter of legal presumption, but must be discovered from the evidence. And as the intent to kill is an absolutely essential element of the offense of assault with intent to murder, its presence at the time of the alleged assault must be proved, and can not be presumed. One who kills can very well be presumed to have intended to kill, because the law presumes that every one intends the result which would naturally and legitimately ensue from the act committed by him. And for this reason the presumption, in a case of homicide, that the slayer intended to kill, is natrrral and logical; but it does not follow, in a ease in which death does not result, that the assailant intended something which did not happen. It is true that the facts and circumstances attending an assault may clearly demonstrate that there was an intent to kill, but the determination of the intent must depend upon proof of those facts and circumstances, and is a matter of inference from the facts, and not a matter of legal presumption. For this reason, in every trial for the offense of assault with intent to murder, the [543]*543jury must be expressly instructed that the burden is upon the State to show, beyond a reasonable doubt, that the alleged assault, if made by the defendant, was made with the specific intent to kill. In the present case it can not be said that the trial judge failed so to instruct the jury. More than once the jury were told that unless they were satisfied that the defendant made the assault with intent to kill the prosecutor, he could not be convicted of assault with intent to murder. And these instructions were couched in language which would perhaps satisfy us that if there was ever a ■case in which there were contradictory instructions and yet the ■ jury could not have been misled, it is the present case; for the trial judge so stressed the correct instructions (as to the necessity of the jury’s being satisfied that the defendant made the assault with the specific intent to kill) that if the jury could make a choice between the conflicting instructions, we would have to assume that they would necessarily infer that the judge did not intend that the instruction of which complaint is made should be considered by them. However, the statement that if they were satisfied that the offense was of such nature that if death had ensued the offense would have been murder, they would be' authorized to convict the accused of assault with intent to murder, was not withdrawn or corrected; and therefore, under the rulings of the Supreme Court as well as of this court (see Savannah, Florida & Western Ry. Co. v. Hatcher, 118 Ga. 273, 45 S. E. 239, and cases cited; Savannah, Florida & Western Ry. Co. v. Canty, ante, 411), the erroneous instruction, not having been withdrawn, must be held to have at least confused the jury and rendered them uncertain as to what the law ripon this point really was. “The attention of the jury was not specially called to the fact that it was intended [by the subsequent instruction] to correct what had previously been said. The jury must take the whole charge as the law, and it is not for them to select one part to the exclusion of another, nor to decide whether one part cures or qualifies .another, without being instructed so to do by the judge.” Savannah, Florida & Western Ry. Co. v. Hatcher, supra.
2. The court correctly instructed the jury that no indignity offered by Doc Kendrick, or even any assault made by him upon the defendant, Joe Wimberly, at the church, would afford justification for. an, assault made by Wimberly upon Kendrick, if the [544]*544previous difficulty had ended. As a matter of law, one who has been insulted, or even assaulted, has no right to seek an occasion, after the personal encounter has ceased, to avenge either the insult or the assault. But, though the law will not justify an assault made in retaliation of a wrong which has been completed, still, in mercy to the frailty of human nature, the gravity of the offense may be mitigated where the assault can be attributed to an impulse of passion supposed to be uncontrollable, if the jury find that sufficient time had not elapsed for the heat of passion to have cooled. Our law, however, makes the jury the exclusive arbiter of what is sufficient “cooling time” (Penal Code, § 365); and, for this reason, the use of the phrase, “an appreciable time,” by the trial judge, was inappropriate and an invasion of the province of the jury. The court could very well have told the jury that an indignity or assault upon a previous occasion would afford no ground of justification whatever to the defendant for the assault made by him (if the jury found he made one); but, in instructing the jury upon the circumstances which might mitigate or reduce the offense, they should have been told that if they found, from the evidence, that the assault was due'to such previous provocation as the law will consider in mitigation, they should inquire and determine as to whether the time which had elapsed was a sufficient time for the irresistible impulse of passion to have cooled. It was not for the judge to say whether that time would be an appreciable or an inappreciable tjme. The defendant’s act would be attributable to deliberate revenge if there was an interval, between the assault or provocation given and the assati.lt for which the defendant was indicted, sufficient for the voice of reason and humanity to be heard; but what would be a sufficient time is purely a jury question.
3. The remaining assignments of error are not meritorious. The excerpts from the charge of winch complaint is made, when viewed in connection with the charge as a whole, afford the plaintiff in error no cause for complaint. The instructions upon the presumption of innocence and reasonable doubt call for our express approval. In regard to the efforts to define “reasonable doubt,” this court has frequently held, and still holds, that any attempt to-define two words whose meaning is so obvious is more likely to confuse than enlighten the jury. Any jury qualified to serve as [545]*545such, may be presumed to know what is meant by reasonable doubt. But as every juror should act under the sanctity of his oath and the guidance of his conscience, it is not inappropriate that the jury’s attention be called to their duty in this regard.
The court charged the jury: “A reasonable doubt is what the term implies,—a doubt founded in reason. It must not be a doubt that is a fanciful doubt, or a mere possibility that the defendant may not be guilty, but the question is, after the jury has taken all the evidence and considered it, together with the prisoner’s statement, are the minds of the jury settled to the conviction that the defendant is guilty; and is the jury ready to say, upon their oaths and their consciences, that the defendant is guilty?- And if they do that, there can not be any reasonable doubt.”
The warning which the judge gave the jury against presuming the defendant guilty certainly affords him no ground for complaint. It was really favorable to him, and yet not unfair to the State; because the State does not desire or require the conviction of any one not clearly proved to be guilty. As a matter of law, every prisoner enters upon his trial with the presumption of innocence in his favor; as a matter of fact, it frequently happens that a prisoner charged with a heinous crime enters upon his trial burdened with the presumption of guilt. For this reason, the instruction of the trial judge in the present case (following the statement of the rule “that the prisoner goes upon his trial with the presumption of innocence in his favor”), to the effect that the jury should not presume that the defendant is guilty, until that guilt is proved to the jury according to the principles of criminal law,—which the judge is required to give in charge,—could not have been harmful to the accused. Perhaps the principle would have been more correctly stated if the jury had been told that “the jury are not to presume that the accused is guilty, until his guilt has been proved beyond a reasonable doubt, according to the law as given in charge and under the evidence as the jury find it to be true.”
. We reverse the judgment refusing a new trial, • solely for the reason that the law requires that the jury shall take the law from the court, and that where the instructions from the court -upon a specific point are in conflict, the jury is without power to. reconcile the conflict, and this court is unable to say that the jury did [546]*546not act' upon the erroneous. instruction,' rather than upon that which was ¡correct.
.'As a means of straightening and shortening the path to substantial justice, it would perhaps be well for the legislature to pass á law which' would require counsel to call the attention of the judge, at the conclusion of his charge, to any conflicting instructions, and thus enable him then and there to correct the error, by withdrawing and correcting erroneous instructions; and deny the right to assign error upon this ground, unless the judge failed or refused to fully correct the error. However, until some such legislation is had, the courts of review can only enforce the law as it is. Judgment reversed.