Ayers v. State

¶1dissenting. I do not agree to the ruling in division 4 of the opinion or to the judgment of reversal. The State’s evidence shows that the accused, while voluntarily intoxicated and while sitting in the seat of his parked truck, shot Posey three times with a rifle and without any justification for doing so, thereby inflicting wounds on him from which he died a few days later. It also shows that the accused, soon after shooting Posey, got out of his truck and started shooting his rifle toward Luther Mason’s car which was then being used for the purpose of getting Posey to a doctor. As Mason’s car was being driven away, the accused began shooting in the direction of Flynn Cook’s car which he had stopped just before the shooting started because the road was blocked by the defendant’s truck and Mason’s car. As Cook fled from the scene, other shots were fired aiid he received a bullet wound. The accused offered no evidence and in his statement to the jury gave accident as his only excuse for the killing, and in his statement he referred to the deceased as being his best friend. The accused, as I have pointed out, planted his defense squarely on the proposition that the killing resulted solely from an unfortunate accident which occurred while he was trying to unload his rifle; and the judge, after giving the instruction complained of and after he had already instructed the jury that they had a right to believe the defendant’s statement in preference to any or all of the sworn testimony, specifically and plainly charged the jury more than three times that it would be their duty to acquit the accused if they believed the killing resulted from an accident, and as to this portion of the charge there is no complaint. Before charging on the law of accident, the judge had instructed the jury as follows: “If a person is killed by another as charged in the indictment, by an instrument in the manner in which it was used was one likely to produce death, and at the time of the killing there were no circumstances such as to excite the fears of a reasonable man that his life was in danger from the deceased, under the instructions I have given you and shall give you, then the law would imply malice on the part of the de*162fendant, and you would be authorized to find the defendant guilty as charged in this bill of indictment.” Error is assigned on this portion of the charge in special ground 4 of the motion for new trial. I, of course, agree with the majority that the presumption of malice, which arises where a killing results from the use of a deadly weapon, may be overcome not only by proof of justification, but also by proof of accident or proof'of a lower grade of homicide, and I am also familiar with the rule that, where an incorrect principle of law is charged as to a material issue involved in the case, the error is not rendered harmless by a subsequent statement of the correct principle, unless the judge expressly calls the attention of the jury to the incorrect statement and retracts it; but this rule does not apply where the portion of the charge complained of is simply modified or completed by a subsequent instruction and the one is not a contradiction of the other. Giving an incomplete charge, and afterwards modifying or completing it, is a different matter from giving two inconsistent and contradictory instructions without withdrawing the erroneous instruction and calling the attention of the jury to the erroneous charge and the correct charge substituted in its place. Brown v. Kendrick, 163 Ga. 149, 161 (135 S. E. 721). This court has repeatedly held that, where a killing with a deadly weapon is proven to be the act of the defendant, the presumption of innocence is removed, and the burden is then upon the defendant to justify or mitigate the homicide unless the evidence offered by the State shows justification of mitigation. See Smith v. State, 203 Ga. 317, 324 (46 S. E. 2d 583), and the several cases there cited. By the portion of the charge complained of the court in effect instructed the jury that, where one kills another with an instrument which is likely to produce death in the manner in which it is used at the time, and kills under circumstances which are not sufficient to excite the fears of a reasonable man that his life is in danger from the deceased, the law implies malice on the part of the defendant, and the jury would be authorized under those circumstances to convict the defendant of murder. This portion of the charge is not inconsistent with or contradictory of the later instruction where the judge plainly charged the jury that, *163if they believed the defendant killed Posey and that the killing resulted from an accident, then it would be their duty to acquit him. I think the excerpt complained of is a correct statement of a principle of law and there is no contention that the judge did not fully and correctly charge on the subject of accident. The excerpt complained of simply amounts to an instruction that the jury would be authorized to convict the defendant of the offense charged in the indictment if they found that he killed the deceased with a deadly weapon and under circumstances-which were not sufficient to excite the fears of a reasonable man that his life was in danger from the deceased, and this portion of the charge is not inconsistent with or contradictory of the later charge that it would be the duty of the jury to acquit the accused if they believed the killing resulted from an accident. Juries, being composed as they are of upright and intelligent persons, are capable of comprehending and do understand and properly apply much more of a court’s charge than we sometimes suppose they do; and if a charge is sufficiently clear to be understood by jurors of ordinary capacity and understanding, this is all that is required. Georgia Railroad v. Thomas, 73 Ga. 350, 356; Barron v. Chamblee, 199 Ga. 591, 597 (34 S. E. 2d 828).