¶1specially concurring. I concur in the judgment of reversal, but do not think the charge referred to in the 2d division *316of the opinion is subject to the criticism made thereon. The court, in charging the jury regarding the defendant’s statement, properly stated that the jury “may give to it such weight and credit as they may see fit,” and “may believe it in preference to the sworn testimony.” The charge immediately following the statements of the court above referred to, that the jury could not captiously disregard the testimony of a witness, and that they should believe a witness unless impeached or his testimony “set aside by some method known to the law,” was not subject to criticism because given in close proximity to the charge in regard to the defendant’s statement. It was at least just as appropriate to charge that the testimony of a witness could not be captiously disregarded, immediately after charging on the defendant’s statement as indicated in the second sentence hereof, as at any other place in the charge. It was proper to give both propositions of law in charge, and to give them together subjected the charge to no criticism. The charge that the testimony of witnesses was not to be disregarded unless it “was set aside'by some method known to the law,” in view of that portion of the charge which preceded it, was in effect an instruction to the jury that one method of setting it aside was to believe the statement of the defendant in preference to such testimony. The further charge that it was the duty of the jury to find the truth “under the rules of law given you in charge by the court” could have no other meaning,-in view of tlje immediately preceding charge on the defendant’s statement, than that in finding the truth they should consider the rule of law given them, that they could give the statement such weight and credit as they might see fit, and could believe it in preference to the sworn testimony. The charges upon both subjects stated correct principles of law, and the charge relating to the testimony of witnesses was not subject to criticism because given in immediate connection with the charge on the defendant’s statement. Indeed, it would seem that where charges containing correct principles of law in regard to the statement of the defendant and the testimony of witnesses are given, instead of it being misleading to the jury to give them in immediate connection with each other, just the reverse would be true; that is, the jury would thereby gain a better understanding of the law in reference, to these two subjects.
135 Ga. 312
Delk v. State
Decided November 15, 1910
Supreme Court of Georgia · decided 1910-11-15
<p>1. If, upon the trial of a person indicted for murder, the evidence introduced to establish the homicide presents two conflicting theories of fact, one based upon circumstances indicating malice and the other upon warranted inferences which negative its existence, it becomes a question of fact to be decided by the jury, as to which one of these inconsistent theories is correct. In such a ease it is proper to charge the jury that the law presumes every homicide to be malicious, until the contrary appears from circumstances of alleviation, or of excuse, or justification, and that it is incumbent on t.he accused to show such circumstances, unless they appear from the evidence produced against him.</p> <p>(a) Under the evidence introduced by the State in the present case, a charge to the effect that, where the killing was shown, the burden was upon the party killing to show that he was justified under some rule of law, was too restricted, excluding mitigation or alleviation, or that these might arise from the evidence introduced by the State.</p> <p>2. It was not desirable, after charging that in all criminal cases the defendant has a right to make such statement as ho may see fit .to make in his* own defense, that the statement is not under oath, and that the jury may give to it such weight and credit as they see fit, and may believe it in' preference to the sworn testimony, or may disregard it entirely, .the determination of what weight and credit to give to it being for the jury, — to immediately add, in juxtaposition therewith, that jurors have no right to captiously set aside and disregard the testimony of a witness, that it is their'duty to believe a witness, unless he ■is impeached, or his testimony is set aside by some method known to the law, that the jury are to do their duty, whatever it may be, and that it is not a question of sentiment or sympathy, but of finding the truth of the case, under the evidence and the rules of law given them in charge.</p> <p>3. If a deadly weapon be used in tbe commission of a homicide in the usual and natural manner in ■which such weapon would produce that result, such as intentionally shooting another with a gun, the. presumption of an intention to kill would arise. But a weapon may be used in a manner not naturally calculated to produce death; and in such a ease the. question of intent to kill is one of fact. The charge of the court on this subject was inaccurate.</p>
Good law ✅— No negative treatment on recordhow we know
Decided 1910-11-15
How this case has been cited
Cited by 23 later decisions — most recently May 2008
23 state decisions
Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.
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