Opinion
29162.
DECIDED NOVEMBER 11, 1941.
Assault with intent to murder; from Haralson superior court — Judge Mundy. May 27, 1941.
Price Edwards, for plaintiff in error.
Hal C. Hutchens, solicitor-general, D. B. Howe, W. H. Foster Jr., contra.
1. The judge charged the jury in part as follows: "Now, when I use the word `victim' that refers to Mr. Tolbert, the person who is alleged in this indictment to have been assaulted by the defendant, and where I have reference to the defendant I have identified the defendant on trial." The charge should not characterize the person alleged to have been assaulted as a "victim," but under the facts of this case, when the use of such word is considered in connection with the context it did not have the effect of expressing an opinion that the prosecutor was not the aggressor in the rencounter, but was the victim of an unlawful assault, and the jury must have understood that the judge was not expressing such an opinion.
2. The accused was convicted of assault with intent to murder, and the evidence authorized the verdict. The court charged the law of murder, justifiable homicide, assault with intent to murder, and stabbing. Under these circumstances the failure of the court, in the absence of a request, to charge on the law of manslaughter was not harmful to the accused, as the only possible beneficial effect to him of such a charge would have been that it would have authorized a finding of an unlawful stabbing under the Code, § 26-1701. Duhart v. State, 18 Ga. App. 287 ( 89 S.E. 343); Chandler v. State, 54 Ga. App. 334 (3) ( 187 S.E. 856).
3. Ground 3 is but an elaboration of the general grounds.
4. A motion to declare a mistrial was made because of the solicitor's remarks that every one in the court-room knew the defendant, and further statements of the solicitor in reference thereto, in colloquy between counsel for the defendant and the State, in effect that he (the solicitor) was going to make his own deductions from the evidence. Also because of other statements of the solicitor which were in effect reiterations of his first statement. The judge ruled out the solicitor's statement as to what the people knew, but stated that the solicitor could draw his own deductions from the evidence. It also appears that at the conclusion of the colloquy the court said: "I have ruled, and I think the solicitor is trying to keep within the ruling, that what other people know about the defendant has nothing in the world to do with the case, and I have already explained to you, gentlemen of the jury, that you will be controlled entirely and determine what the facts are from the testimony that has been delivered here to-day, that is, the evidence that has been adduced on the trial and admitted by the court, and the defendant's statement, and anything that comes from any other source, either from counsel for the State or for the defendant, should pass by unnoticed as far as you are concerned. I think I have made that clear. The reason it would be improper for the solicitor to say that everybody knows character night be a suggestion that it was bad, in the connection in which it was used. Having made this explanation, and having confidence in your ability and integrity, I overrule the motion and let the case go on to you for your final determination." In the light of this instruction, we do not see in this ground any cause for a new trial. Manchester v. State, 171 Ga. 121 (7) 132 ( 155 S.E. 11).
5. The evidence authorized the verdict.
DECIDED NOVEMBER 11, 1941.
Only headnote 1 will be discussed. The judge charged the jury in part as follows: "Justifiable homicide is the killing of a human being in self-defense, or in defense of person against one who manifestly intends or endeavors, by violence or surprise, to commit a felony on the defendant. Continuing the charge in connection with what would be necessary to establish the guilt of the defendant if the victim in this case had died, and the right of the defendant to defend himself, I will give you this additional principle in charge: On the subject of justifiable homicide, the court instructs you that if you believe that this defendant killed the person named in the indictment, or in this case that he made the assault alleged in the indictment, and if you should further believe that at the time he made the assault set out in the indictment, if he did make it, the victim was committing a felonious assault upon the person of this defendant, or if you should believe that the victim in this case intended or endeavored by violence or surprise, to commit a felonious assault upon the person of the defendant, or if you believe the circumstances surrounding the assault by the victim, if any, were such as to excite the fears of a reasonable man that the victim intended, or endeavored, or was about to commit a felonious assault upon the person of the defendant, and that, acting under the influence of those fears and not in a spirit of revenge, this defendant assaulted and stabbed the person named in the indictment, if he did that, then and in that event the alleged assault by the defendant would be justifiable and you would not be authorized to convict the defendant of any offense at all. [Now, when I use the word `victim,' that refers to Mr. Tolbert, the person who is alleged in this indictment to have been assaulted by the defendant, and where I have reference to the defendant I have identified the defendant on trial.]" (Brackets ours.)
The defendant objected to the last sentence of the excerpt from the charge which above is enclosed in brackets, and contends that the use of the word "victim" expressed an opinion that the prosecutor was not the aggressor in the rencounter but was the victim of an unlawful assault. While our Supreme Court in Hayes v. State, 58 Ga. 35 (11), has said that under the facts in that case "the charge should not characterize the deceased as a `victim,'" and the Supreme Court of California, in People v. Williams, 17 Cal. 142 (7), has said that "`victim' is a term not to be used" in a murder case in referring to the deceased; yet, under the facts of the instant case, when the language of the court is considered in connection with the context, the charge complained of was not reversible error because it expressed an opinion that the person alleged to have been assaulted was not the aggressor. The indictment itself alleged that the defendant did "unlawfully and with force and arms, feloniously, and with malice aforethought, with a certain knife, dirk and razor, and other weapon of like kind, a further description of same being unknown to this grand jury, which he had and held, the same being a weapon likely to produce death, make an assault upon Jim Tolbert hereinafter referred to as the victim, and the said accused with said weapon, did then and there cut, stab, and wound the said victim, with intent unlawfully, feloniously, and with malice aforethought, to kill and murder the said victim" (italics ours); and the judge, in the introductory part of his charge, stated to the jury what the allegations were in the indictment, and among other things stated that the indictment alleged that the defendant did, with "a weapon likely to produce death, make an assault upon Jim Tolbert, hereinafter referred to as the victim, and the said accused, with said weapon did then and there cut, stab, and wound the said victim with intent unlawfully, feloniously, and of his malice aforethought, to kill and murder the said victim, contrary to the laws of said State, the good order, peace and dignity thereof." (Italics ours.) Considered in connection with the context, the jury must have understood that when the judge used the word "victim" he was referring merely to Mr. Tolbert, the person named in the indictment who was alleged to have been assaulted, and was not expressing any opinion that Mr. Tolbert was not the aggressor. Under proper construction, the excerpt complained of did not amount to an expression of an opinion as contended by the defendant, and we do not think such charge requires the grant of a new trial. Floyd v. State, 143 Ga. 286 (4) ( 84 S.E. 971); Wilson v. State, 152 Ga. 337 (4), 342 ( 110 S.E. 8); Wilson v. State, 190 Ga. 824 (7), 831 ( 10 S.E.2d 861). The judge did not err in overruling the motion for new trial for any reason assigned.
Judgment affirmed. Broyles, C. J., and Gardner, J., concur.