¶1dissenting. We do not think that a new trial should be granted on account of the instruction contained in the fourth division of the opinion. The lexicons define both words to mean “to stifle, to suffocate.” Death accom*21plished by strangling results from inability to inspire and expire air into and from the lungs, and death from smothering results from the same physiological cause. The charge in the indictment that death was produced by choking and by strangling indicates that strangling was not limited to suffocation produced by a constriction of the throat. While there may exist some technical difference in the terms, yet in common speech one is generally understood as the equivalent of the other. We do not think that the difference is so radical as to imply essentially different means of producing death.
141 Ga. 17
Lanier v. State
Decided November 13, 1913
Supreme Court of Georgia · decided 1913-11-13
<p>1. Where the evidence produced against a defendant in a criminal case is entirely circumstantial, and the court in charging the jury fully and accurately defines direct and circumstantial evidence, and further instructs them that the proved facts must not only be consistent with the hypothesis of guilt but must exclude every reasonable hypothesis save that of the guilt of the accused before they would be authorized to convict, it is not cause for- a new trial that the court does not in express terms inform the jury that the prosecution relies altogether on circumstantial evidence to establish the guilt of the defendant.</p> <p>2. Where a defendant is indicted for murder and the evidence affords no indication of any degree of homicide less than murder, and would sustain no verdict other than a finding of murder or an acquittal, an instruction to the effect that the lesser grades of homicide are not involved iii the ease is not erroneous as excluding from the jury’s consideration the defendant’s guilt as an accessory after the fact. *</p> <p>3'. Expert testimony is receivable as to the cause and manner of death. A non-expert witness who has observed certain marks on' the lips and face of the dead body of an infant may give his opinion of their relation to the cause of death, after stating the facts.</p> <p>4. An indictment charged two defendants (husband and wife) with the .murder of their infant “by choking, strangling, and by beating and striking said baby boy with a certain instrument to the grand jurors unknown.” An instruction that if the defendant on trial and his wife “were acting together in a common purpose, advising together and acting together, it would make no difference which one of them may have actually committed the crime; if they acted in concert with each other, it would make no difference whether this defendant or his wife actually struck the blow, or choked or smothered the child; each would be responsible, regardless of who may have struck the fatal blow,” is erroneous and cause for new trial, on the ground that the indictment did not charge the defendant with causing death by smothering. (Two Justices dissent.)</p>
Decided 1913-11-13