Turbaville v. State

Jackson, Judge. The defendant was found guilty of voluntary manslaughter, and the evidence justified the verdict. A new trial was moved for on the ground of certain alleged errors on the trial, it was refused, and this judgment, overruling the motion for a new trial, is assigned as error. The first ground is that only the foreman’s name appears in the transcript of the record here in respect to the verdict of the jury, but it was not insisted upon, and need not be considered. The second ground was the refusal of the court to order the sheriff and deputy, who were witnesses for the state, to leave the court room on the separation of the witnesses, and the refusal to allow one witness to remain to assist the prisoner. We think that this is matter for the discretion of the court below, and no proof being adduced of injury to the defendant from the exercise of that discretion in this case, but good reason appearing for the course the judge pursued, we shall not interfere. Code, §3863. As to the next ground, that the court should have admitted proof that deceased said that prisoner saved himself from a d — d good whipping by shooting him, and should have re-opened the case after it was closed, for that purpose, we see no such error as would require us to grant a new trial. It would not have affected the verdict if admitted, and it was very much in the discretion of the court to open or not open the case again, dependent upon the weight and character of the evidence. So about the admissibility of some irrelevant testimony. The real point in the case, and the only point seriously urged here, is that when the jury returned a verdict of “guilty of involuntary manslaughter without due caution and circumspection,” the judge refused to receive it, but [547] sent them back, and charged them the law as to the two kinds of involuntary manslaughter; whereupon the jury returned a verdict of guilty of voluntary manslaughter. It will be seen that the important words “in the commission of a lawful act,” were left out of the verdict, and that the court merely instructed the jury as to the kinds of involuntary manslaughter; one in the commission of an unlawful act, and the other a IcmftiZ act without due caution and circumspection. The distinction is mainly in the legality, or illegality, of the act which resulted in the homicide, and the jury had not found that important fact, whether it was the one or the other. We cannot discover any error in sending them back to make a legal verdict. 38 Ga., 117; 20 Ga., 368; 28 Ga., 602. It is not pretended that the judge even intimated that they should not find involuntary' manslaughter. The jury, however, when they went back, saw that the facts made neither grade of involuntary manslaughter, but voluntary manslaughter, and so found. We think that their ' “ second sober thought ” was right, and we decline to interfere' with it. Judgment affirmed.