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Hines and Bryan vs. Mullins, Ordinary for the use, &c.

of Harris county, and that said appointment was void ; now if you believe, from the evidence, that the said minor, Edward M., remained in Meriwether by the consent of the defendant, then you must find for the plaintiff.

The verdict was for plaintiff, and defendant excepted to the charges of the Court, and assigns the same as error.

INGRAM & RUSSEL; and J. M. MOBLEY, for plaintiffs in er

ror.

D. P. HILL, for defendant in error.

By the Court.-BENNING, J. delivering the opinion.

[1.] A father is bound to support and educate his children if he is able to do so, and that, whether they have property of their own or not. This proposition is not disputed.

The first charge, therefore, cannot be wrong, for it asserts no more than this proposition.

As to the second charge.

Hines, the father, was the person first appointed guardian of the children, by the Inferior Court of Harris county. He accepted the appointment, received the property, and otherwise acted as guardian, until he was removed from the guardianship, for misconduct, by that Court.

[2.] Now, would it have lain in his mouth to say, that at the time of his appointment one of the children “resided,” not in Harris, but in Meriwether; and, that, consequently, the appointment was void? Would not the Court in Harris, have had the right to call him to account, be the matter as to the residence of this child, as it might? We think so. It is to be presumed, that he made every thing appear to the Court, necessary to give it the jurisdiction to appoint him ; and allowing him afterwards to protect himself by a plea, that the Court did not have this jurisdiction, would be allowing him to take advantage of his own wrong.

If so, then, the act of appointing him is to be taken as the

Hines and Bryan va. Mullins, Ordinary for the use, &c. act of a Court having jurisdiction, and therefore is to be held as valid.

But if the Court had jurisdiction to appoint him, it had jurisdiction to remove him.

Not only so; it had jurisdiction to make any such order as it should " think fit;” and, therefore, it had jurisdiction to appoint a successor. “And when such Court shall know or be informed, that such guardian, executors or administrators, shall waste, or in any manner, mismanage the estate of such orphan or deceased person; or does not take due care of the education and maintenance of such orphan, according to his her or their circumstances; or where such guardian, executor or administrator, or his, her or their securities, are likely to become insolvent; such Court may make such order for the better managing and securing such estate, and educating and maintaining such orphan, as they shall think fit." Cobb Dig. 312

The result is, that all of the action of the Court in Harris; the appointment of Hines; his removal; and the appointment of Smith as his successor; was valid, at least, so far as he was concerned, even although, one of the children, was all the time, residing in Meriwether.

This being so, there was no harm done by this charge even if it was wrong; and if a wrong charge does no harm, it is not a ground to this Court for granting a new trial unless a new trial was moved for in the Court below.

In this case, a new trial was not moved for, in the Court below.

Judgment affirmed.

Hinch vs. The State.

SAMUEL J. HINCH, plaintiff in error, vs. THE STATE or

GEORGIA, defendant in error.

[1.] The Act giving parties carrying causes to the Supreme Court thirty days to

prepare and submit a bill of exceptions to the Judge who tried the cause, does not change the law in regard to the sentence of prisoners convicted of capital

offences. [2.] On the trial of a prisoner for murder, who endeavors to make out a case of self

defence, it is competent to prove, on the part of the prosecution, Khat the prisoner

was a large and deceased a small man. [3.] It is right for the Court, on trials for murder, when the accused relies on self

defence as a justification, to enlighten the jury as to the law bearing upon that

defence. [4.] The latter clause of the 15th section of the 6th division of the penal code, does

not apply to cases of mutual combat, only, but to cases in which the accused declines a contest on equal terms, but shoots down his assailing adversary.

Tried before Judge

Murder, from Muscogee county. WORRILL, May Term, 1858.

The jury found Hinch guilty, and the Judge sentenced him to be executed on the second day of July, proximo. The defendant's counsel moved in arrest of judgment, upon the ground, that said defendant was ordered to be executed within thirty days from the adjournment of the Court; and also moved the Court for a new trial, upon the following grounds:

1st. Because the verdict of the jury, in said case, was contrary to law and evidence.

2d. Because the Court allowed the prosecution to prove the deceased a small man, and prisoner a large man.

3d. Because the Court erred, in charging the jury, after having charged all the grades of homicide, by reading the definitions from the code, “ if a person kill another in his defence, it must appear that the danger was so urgent and pressing at the time of the killing, that in order to save his own life, the killing of the other was absolutely necessary; and it must appear also, that the person killed was the assailant, or that the slayer had, really and in good faith en

Hinch vs. The State.

deavored to decline any further struggle, before the mortal blow was given," and refused to charge the jury, upon request of counsel for prisoner, that said last section of the code applied to cases of mutal combats only; which said motion in arrest of judgment, and for a new trial were refused. Whereupon, counsel for prisoner excepted and assign

error.

The ground in the motion for a new trial, that the verdict was contrary to the evidence, not being insisted on, it is deemed unnecessary to give a statement of the testimony.

RAMSEY & CARITHERS, for plaintiff in error.

OLIVER, Sol. Gen.; WELLBORN, JOHNSON & SLOAN; and C. J. WILLIAMS, for defendant in error.

By the Court.McDonald, J. delivering the opinion.

[1.] By law, the Court may fix any time for the execution of a prisoner convicted of a capital offence, between twenty and sixty days from the day of the sentence. Cobb, 840. The right conferred on parties to suits in the Circuit Courts, to have thirty days to draw up and submit to the Judge who heard the cause, a bill of exceptions, does not changeor modify in any respect, the statute requiring the Court to fix the time for the execution of prisoners. The Court cannot fix the time within twenty days of the day of the sentence, and that gives time enough, if we were allowed to consider that matter in deciding the question.

The plaintiff in error moved for a new trial, on three distinct grounds. The first ground, "that the verdict of the jury in said case was contrary to law and evidence," was not insisted on in this Court.

[2.] The Court admitted evidence that the deceased was a small man, and the prisoner was a large man, and the ad

Hinch vs. The State.

mission of this evidence is urged as a ground for a new trial. From the proof submitted to the jury by the defendant, it is manifest that the counsel for the prisoner was attempting to make out a case of justifiable homicide, in self-defence. To make out this defence, it must appear that, the danger to the person killing "was so urgent and pressing, at the time of the killing, in order to save his own life, the killing of the other was absolutely necessary.” If the prisoner might have prevented injury to himself without taking the life of the deceased, by reason of his superior size and strength, the killing was not absolutely necessary in order to save his own life. T'he evidence of one of the witnesses is, that he supposed the deceased, when he was approaching him, the witness, with an open knife, intended to cut him, but he stopped him. The testimony of another witness is, that when the deceased was going upon Stowers with his knife, the prisoner stopped him. He had strength enough to prevent an injury to others, without taking the life of the deceased. The evidence ought to have been admitted, to enable the jury to form a more satisfactory judgment upon the necessity of taking the life of the deceased.

[3.] We see nothing in the charge of the Court, or in his refusal to charge as requested, to warrant the granting of a new trial. A killing in self-defence was unquestionably attempted to be established by the prisoner, and the charge of the Court was, as it ought to have been, to enlighten the jury as to the law bearing upon that defence; to impress upon them, that it is not every danger to the person of the slayer which justifies the killing of another; but that it is a danger to his life so great, that in order to save his own life, at the time of the killing, the killing of the other was absolutely necessary.

[4.] We do not think that the last section of the charge, given from the code, applies to cases of mutual combat only. Mutual combats must be on sudden provocation, without malice, to reduce the homicide to manslaughter. On such

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