BOYD v. THE STATE., 207 Ga. 567, 63 S.E.2.d 394 (1951)
Linked as:
Text
Eugene Cook, Attorney-General, Walton Usher, Solicitor-General, Hilton & Hilton, Limerick L. Odom, and Odom & Odom, contra.W. C. Hawkins and J. Henry Howard, for plaintiff in error.
1. Where the issue before the jury is one of opinion, the testimony of experts is competent evidence; but the jury is not bound by the opinions of expert witnesses.
2. Where the charge of the court on the necessity for the defendant to establish his plea of insanity by a preponderance of the evidence is confined to that defense, such charge is not erroneous.
3. Justifiable homicide is a substantive and affirmative defense; and where such defense is in issue and the court does not specifically, or in general terms, inform the jury that, if they should believe the defendant justified, it would be their duty to acquit him, a new trial must be granted.
Crawford L. Boyd was indicted and convicted of the murder of Orell D. Parker. His motion for new trial, as amended, was overruled, and the exception is to that judgment.
Upon the trial the State offered the testimony of four witnesses as to threats by the defendant to kill the deceased. Both the State and the defendant offered testimony with reference to a previous attempt by the deceased to shoot the defendant with a shotgun, at which time the deceased fired twice at the defendant, and thereafter the deceased stated to his daughter, Mrs. Irene Sasser, that, if his gun had been loaded with buckshot, as he thought it was, he would have killed the defendant.
In the shooting affray wherein the deceased was killed, and the defendant gravely wounded, the State's witnesses could not testify as to whether the deceased or the defendant fired the first shot. The homicide occurred at a filling station operated by Mr and. Mrs. W. L. Durden. Mrs. Durden testified: The deceased was in the filling station, standing right. inside the door with his back to the door, facing the witness, with one hand in his pocket and one on his pipe. Delmas Lawson was in the filling station, sitting on a counter, and Warren Oliver was leaning back against a counter, and these were the four people in the station when the defendant entered, came over next to the witness, and propped up facing the deceased. The defendant had a cigar in his left hand and his other hand was under his coat. The defendant asked the deceased three times to remove his hand from his pocket, when the deceased stated that he would if the defendant would take his hand off of his gun. The defendant then went to the deceased, caught him in the clothes, and hit him on the head. The witness did not know what happened afterwards. She just heard shots and she got down in the corner. She could not tell how many shots were fired. When the shooting ceased, the deceased appeared to be dead.
In substance the testimony of Warren Oliver supported the testimony of Mrs. Durden, except that Oliver stated that the defendant hit the deceased twice before the shooting started. The witness could not swear who fired the first shot. He went into a rest room when the shooting commenced.
The defendant made a lengthy statement in his own defense. His statement is rambling, disconnected, and in many instances without intelligible meaning. He related numerous instances wherein he suspected the deceased of having improper relations with his wife. He gave an account of the homicide, in which he claimed that he struck the deceased to prevent the deceased from shooting him, and that the deceased shot him before he shot the deceased.
1. It is contended by counsel for the defendant that the State did not offer any evidence to contradict the testimony of Dr. Craig, a psychiatrist, who testified that in his opinion the defendant suffered from insane delusions, and did not have sufficient mentality to comprehend the difference between right and wrong with reference to a crime connected with his delusions. It is insisted by counsel that this evidence was sufficient to overcome the presumption of sanity, and that, under the ruling of this court in Handspike v. State,
In this case, as was said in Waller v. State, supra, "the omission complained of was evidently the result of an oversight upon the part of the learned judge who presided in this case, but it was nevertheless effectual to withdraw from the jury the consideration of his theory of justifiable homicide as a separate, substantive defense to the indictment."
It was error to overrule this ground of the amended motion.
Judgment reversed. All the Justices concur.
Sponsored links
