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Bird vs. The State of Georgia.

plainly requires that he shall swear that he is so advised, and we cannot alter or annul the provision.

2. In cases where there is no question of fact, the Code provides that the judge of the superior court shall make a final decision in the case, and not send it back and direct the justice to make it. In this case the judge grants the new trial, and yet dictates the decision of the justice of the peace and the judgment he is to sign up.

We think this without authority of law and against the statute: Code, section 4067.

3. As to the other error complained of, that the verdict, if there was one, was not against the executor as executor, the little word “as” being left out, we think in proceedings in the justice's court no such nicety of pleading or practice is required. On the whole, we think from the record that execution has been long ago issued in this case, perhaps paid off, perhaps dormant; and think that the certiorari should have been dismissed and the judgment of the justice of the peace affirmed; and we so direct.

Judgment reversed.

ZACK BIRD, plaintiff in error, vs. THE STATE OF GEORGIA,

defendant in error.

1. Acts of preparation to meet and resist an aggressor cannot be urged by him

as provocation. The drawing of a weapon with intent to use it upon one of two brothers present, will justify the procurement of a stick with which to resist the intended assault; and, hence, possession of the stick will not be such provocation as will reduce to manslaughter a homicide committed

by the assailant. 2. Where there is not an assault or an attempt to do a serious personal injury,

but provocation by abusive words only, the homicide is not manslaughter, 3. A charge that recites, hypothetically, a state of facts more favorable to the

prisoner than the evidence warrants, and adds that if these facts be found, the killing is not murder but manslanghter, unless the evidence shows it to

be justifiable, is not an error of which the prisoner can complain. 4. In this case the offense proven was clearly murder, and the verdict was

not contrary to law or to evidence.

Bird vs. The State of Georgia.

Criminal law. Manslaughter. Charge of Court. New trial. Before Judge Hall. Monroe Superior Court. February Term, 1875.

Reported in the opinion.

HAMMOND & BERNER, by W. T. TRIPPE, for plaintiff in

error.

T. B. CABANISS, solicitor general, by PEEPLES & HOWELL, for the state.

BLECKLEY, Judge.

There was a party at night, in the week of Christmas. It was given in a small kitchen, and the guests being numerous, most of them were outside of the building. About nine or ten o'clock, a brother of deceased and a brother-in-law of prisoner, had an altercation in the crowd out of doors, about some apples which the former had purchased from the latter without paying the full price. Prisoner walked up and said the money must be paid now. He drew his knife on the brother of deceased, who stepped back to pull off his coat. Deceased then came up and told his brother to have no difficulty; that he would pay for the apples and stop the fuss. The brother replied, there was nobody there to have a fuss with but that damned Zack Bird, (prisoner.) Deceased, (who, according to one of the witnesses, had a stick in his hand, but there was no evidence of any demonstration with it, or attempt to use it) said, damn Zack Bird, who is he? nobody cares anything for him. Prisoner swore he would shoot some body's head off or have the apples back, or have pay for them, or something to that effect. He drew a pistol from his pocket, and shot deceased in the temple, and of the wound deceased died next morning.

This was murder. Argument could not make the matter plainer to any one who has read the Penal Code.

The charges of the court complained of, if erroneous at all,

Bard vs. The State of Georgia.

are more favorable to the prisoner than they should have been. One of them lays down the rule applicable to the case, if the deceased or his brother procured a stick with which to resist prisoner; whereas, there is no evidence that either of them procured a stick on, or for, the occasion. The inost that the evidence suggests is, that the deceased had a stick; but whether he did not bring it with him to the party, or when or where he got it does not appear. There is no hint in the evidence that he attempted to use it. The rule stated by the court is correct, and would have been applicable if the evidence had shown the procurement of any stick. Again, the court charged upon the general nature of the assault requisite to reduce the offense to manslaughter, but there was no evidence of any assault. This, also, was, on that account, more favorable to the prisoner than he had a right to ask. He failed to show any provocation except by words alone. To instruct the jury to search the evidence for any other provocation, was an error full of tenderness to the prisoner. Under the influence of such a charge the jury might have made a mistake in his favor, but could not possibly have made any against him.

Let the judgment be affirmed.

John BARD, plaintiff in error, vs. THE STATE OF GEORGIA,

defendant in error.

55 319 74 433

55 3191 104 551

1. Where a bill of indictment properly charges the defendant with an assault

with intent to murder, and alleges such striking and wounding as would support a verdict for assault and battery, a verdict for an assault will be sustained, though the assault, as a separate offense, be not charged to have

been unlawfully committed, and the judgment will not be arrested. 2. Taking the whole indictment together, the unlawfulness of the assault ap

pears with sufficient legal certainty.

Criminal law. Indictment. Before Judge HOPKINS. Fulton Superior Court. April Term, 1875.

Reported in the opinion,

Bard vs. The State of Georgia.

GARTRELL & STEPHENS; McCay & TRIPPE; L. J. GLENN; HOWELL GLENN, for plaintiff in error.

JOHN T. GLENN, solicitor general, for the state.

JACKSON, Judge.

This was an indictment for an assault with intent to murder. The indictment charged that the defendant, John Bard, “with force and arms, and a knife, a weapon likely to produce death, in and upon one William A. Spencer, in the peace of the state, did make an assault with intent unlawfully to kill the said Spencer with malice aforethought, the said Bard then and there being a person of sound memory and discretion, and with said knife the said Bard did then and there unlawfully cut, stab and wound the said Spencer.” The jury returned a verdict for an assault, and the defendant moved to arrest the judgment on the ground that the assault was not charged with sufficient certainty, and particularly that the assault was not charged to have been unlawfully done.

1. We think that if the indictment had closed with the words "did make an assault," it would have been a full description of that offense, under our Code. It was not necessary to aver that the assault was unlawful. But when the assault with intent to murder was so charged in the indictment as to have supported a verdict for that offense, had one been rendered, it is too well settled to admit of doubt that the verdict for the lesser offense of an assault will be sustained ; and when the indictment further charges an unlawful cutting, stabbing and wounding with a knife, it makes that which was as clear as a sunbeam before still clearer, if it be possible.

2. If it be necessary to charge that the assault was unlawful, taking all the indictment together, it does charge it with certainty. The verdict of stabbing, of assault and battery, or of assault, either of them might have been rendered and would have been sustained by this indictment, and the motion to

Mixon vs. Pollok.

arrest the judgment was properly overruled, and the judgment below is affirmed.

Judgment affirmed.

John Mixon, plaintiff in error, vs. AURELIA POLLOK, de

fendant in error.

Conflicts of evidence and credibility of witnesses are for the jury, and a re

viewing court, even in an extreme case, will generally acquiesce in a doubtful verdict where the judge who tried the cause has refused to interfere.

New trial. Before Judge GIBSON. Burke Superior Court. May Term, 1874.

Reported in the opinion.

JOHN J. JONES, for plaintiff in error.

John T. SHEWMAKE, by brief, for defendant.

BLECKLEY, Judge.

A sister sued her brother and sister, and recovered against the brother alone. The sole complaint is, that the verdict was contrary to law and evidence and the charge of the court. On these grounds the brother moved for a new trial, and it was refused.

The cause of action alleged, was the promise to pay a fixed sum for withdrawing a caveat to a will. Defendants denied the contract as declared upon; averred that none was made to which the brother was a party; and alleged that the one in fact made between the two sisters was broken by the plaintiff, whereby the consideration totally failed. The brother was not sworn as a witness, but the sisters both testified, and, for women, they swore hard. One of them must have been in deep error, for they disagreed widely. The plaintiff's husband corroborated her fully. Other witnesses supported the defendant-sister in her version of the contract, and in the

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