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, 203 Ga. 115 (45 S. E. 2d, 662), a verdict of guilty was not authorized.
The facts in this case clearly distinguish it from Handspike v. State, supra. In the Handspike case a jury had previously passed upon the sanity of the accused, and had returned a verdict finding that he was insane. There was no subsequent adjudication that he had been restored to sanity. Under the rule in this State, a mental condition once proved to exist is presumed to continue. Code, 38-118. This presumption, however, may be rebutted by proof. In the Handspike case the State did not offer any evidence to rebut the presumption of insanity. In the present case the defendant relies solely upon the expert testimony of a psychiatrist. While the opinion of Dr. Craig was competent evidence on the mental state of the defendant, his opinion was not conclusive upon the jury. Expert testimony is intended to aid the jury in arriving at the correct conclusion upon the issue made; but the jury is not bound by the opinion of experts, and may disregard it, or give such testimony credence or not, as it sees fit. Merritt v. State, 107 Ga. 675 (34 S. E. 361); Wall v. State, 112 Ga. 336 (37 S. E. 371); Rouse v. State, 135 Ga. 227 (69 S. E. 180); Manley v. State, 166 Ga. 563, 597 (19) (144 S. E. 170).
After a careful consideration of the statement of the defendant, the writer is inclined to the view that such a statement could come only from an irrational, illogical, and diseased mind; and had he been a member of the jury trying the defendant, he might have arrived at a different conclusion from that indicated by the verdict rendered in this case. This court, however, has no opportunity to observe the manner of the defendant in making his statement. The law places the burden on file jury to evaluate the defendant's statement.
The jury in this case has made its verdict, and this court can not say that the testimony of the expert witness required the jury to find that the presumption of sanity had been overcome by a preponderance of the evidence. The court did not err in overruling the general grounds of the motion for new trial.
2. Ground 1 of the amended motion for new trial assigns error on the following extract from the charge of the court: "It is necessary where a defendant files his plea of insanity or delusional insanity as in this case, that he carry the burden of that plea by a preponderance of the evidence. So you look to the evidence in this case and determine whether or not he has carried the burden. If the defendant on trial has carried the burden by a preponderance of the evidence in the case, he should be acquitted."
It is contended that this charge unduly restricted the defendant's plea of self-defense and insanity, and gave the jury the impression that it was necessary for the defendant to carry the burden of proof by a preponderance of the evidence, and that the effect of the charge was to withdraw from the consideration of the jury the defendant's plea of self-defense.
In so far as the defendant relied upon his plea of insanity for an acquittal, the burden was on him to establish this plea by a preponderance of the evidence. Allams v. State, 123 Ga. 500 (51 S. E. 506). From a careful consideration of the whole charge, it conclusively appears that the language complained of was used solely in connection with the defendant's plea of insanity, and the jury should not have been confused or misled into applying this language to some other contention of the defendant. It was not error to overrule this ground of the motion for new trial.
3. Ground 2 of the amended motion assigns error on the failure of the court to instruct the jury specifically that, if they believed that the defendant was justified under the law, they should return a verdict of not guilty.
The Code, 26-1017, provides: "The homicide appearing to be justifiable, the person indicted shall, upon the trial, be fully acquitted and discharged." Where the court in a general charge sufficiently presents justifiable homicide as a substantive defense, it is not error to fail to charge in the language of 26-1017. Taylor v. State, 121 Ga. 348 (49 S. E. 303); Vincent v. State, 153 Ga. 278 (112 S. E. 120).
In the present case, however, the charge 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. While the court charged certain principles of law connected with justifiable homicide in voluntary manslaughter and mutual combat, no explanation was made as to when these principles would be applicable; and the court did not clearly inform the jury as to what the verdict should be if they should find the defendant justified. The defendant relied on a plea of self-defense, and the evidence and the defendant's statement made justifiable homicide an issue in the case, requiring a full charge thereon.
Justifiable homicide is, in law, a substantive and affirmative defense; and if the jury should find it supported by fact, the accused should be acquitted without reference to the evidence which apparently tended to convict him of murder or voluntary manslaughter. Waller v. State, 102 Ga. 684
(28 S. E. 284). In the recent case of Fountain v. State, 207 Ga. 144
(60 S. E. 2d, 433), this court reaffirmed the rule in Waller v. State, supra, and held that it was error for the court to fail to charge the principle of law embodied in the Code, 26-1017.
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.