175 Ga. 98 | Ga. | 1932
Dissenting Opinion
dissenting. I am not unfamiliar with the provisions of Code § 6093. I do not think the circumstances are such that it is applicable to the case at bar. The State’s counsel has not raised any question as to the sufficiency of the brief of evidence. I shall not, in a capital case, take advantage of those decisions which construe the code section as a convenience for the court, or as a measure designed to lighten the labors of the court. In my opinion the statement of the evidence, while appearing in the form of questions and answers, is just as brief and far more easily understood than it is likely to have been had it been reduced to narrative form, which' the statute says “may” be done. In my opinion, for the reasons hereafter stated, there has been a miscarriage of justice, and in such an instance my conscience will not permit me to “stick in the bark” in the observance of a rule of procedure which has not been uniformly adhered to in the past.
1. The evidence not demanding the inference that the death of the deceased was caused by the use of a weapon likely to produce death, or any instrumentality from the use of which an intention to kill may be presumed, the jury should have been instructed that if they found from the evidence that the homicide was committed by means or in a manner which did not evidence an intention on
2. The evidence is entirely circumstantial, and is insufficient to establish the guilt of the accused to the exclusion of any other reasonable hypothesis except that of his guilt of the crime.
3. The court erred in overruling the motion for a new trial.
The defendant was indicted for and convicted of the offense of murder. In the indictment he was charged with the murder of his wife, “by then and there striking and beating her with an instrument and weapon, the name and description of which is to the grand jurors unknown, . . did then and there inflict upon her, the said Mae Adams, a mortal wound, of which she, the said Mae Adams, did then and there die.” Upon his conviction the defendant moved for a new trial, and the exception presented by the bill of exceptions is to the judgment of the court overruling this motion for a new trial.
1. Aside from the usual general grounds of the motion, error is assigned in an amendment to the motion, alleging that the court erred in failing to charge the jury upon the law of involuntary manslaughter, because the evidence produced by the State tended to show the instrument or weapon used by defendant, if any at all, was not likely to produce death, nor one from the use of which death would be a natural consequence, and that the jury should have been given proper instructions which would have enabled them to pass upon the question of any intention of defendant to kill deceased. There is no exception to the charge of the court predicated upon the complaint that the instructions actually delivered to the jury contained error. No requests for instructions seem to have been presented. In these circumstances, the merit of the special ground of the motion for a new trial depends upon whether the evidence raised such an issue in the case as that it became the duty of the court to instruct the jury with reference to the law of involuntary manslaughter even in the absence of a special request. Courts are required, without request, to give to the jury the law pertaining to issues which may be properly raised upon the pleadings and the evidence. Generally the accusation of the State and the defendant’s plea of not guilty constitute the only pleadings in a criminal case. In the indictment in this cáse the only description
The case of Bell v. State, 130 Ga. 865 (61 S. E. 996), was one in which the deceased was found in a gully with dirt and brush over him. At this place and at a different place, where the deceased was supposed to have been killed, tracks made with a wooden leg were found. The defendant was the only person in the community with a wooden leg. There were three wounds on the deceased — one above the eye, one on the right cheek, and the other under the right ear. The State introduced several witnesses who detailed statements made to them by the defendant. One of them testified: “John Bell said in the presence of me that he killed this boy in self-defense; that he came up on him and his wife; said he told him, 'Oh, yes; I have been laying for you, and now I have catched you.’ He said this boy jumped up then and threw a rock at him and throwed his hand back on his hip-pocket, and he thought this boy had a pistol in his pocket, and he run up on him and hit him, afraid that the boy would shoot him.” Another witness testified: “He said -he found him with his wife,” etc. Another witness testified: “He said the reason he hit him he came up by Dave Huff’s and heard them talking; that he was trying to seduce his wife, and he finally caught them in the act of seduction or sexual intercourse. He said he walked up and his wife walked off, and George told him 'If you come any closer I will kill you,’ and that he hit him with a stick, this way. . . He said that when he went down there George Bennie picked up a rock and threw at him, and said, 'If you come on me I will kill you;’ he didn’t say
In Kelly v. State, 145 Ga. 210 (88 S. E. 822), Mr. Justice Atkinson, delivering the opinion of the court, said: “3. The 8th ground of the motion for new trial, properly construed, complains of the omission of the judge, without request, to charge on the law of involuntary manslaughter. There was evidence to the effect that the deceased, on the night in question, was lying under a tree by the roadside with his face towards the ground, and while in that position the accused approached unobserved and ‘struck him five times on the back of his head and his shoulder . . with a limb of a tree/ While striking the deceased the accused said, with an oath': ‘I will kill you/ The deceased was rendered unconscious. After striking him as indicated, the accused threw down the stick, kicked the deceased aside from his coat on which he was lying, picked up the coat, and went off along the street. Another witness testified that he was the driver of the ambulance that went after the injured man, whom he picked up on the side of the road. The witness also testified: ‘He was unconscious . . a stick beside him in that condition [several pieces of stick being exhibited]. I can not tell where he was lying with reference to Egense. It was right close to him; as far as from me to you/ The doctor testified that
In Dorsey v. State, supra, where the complaint was based upon the failure of the judge to instruct the jury upon the subject of involuntary manslaughter, and the weapon used was before the jury, Mr. Justice Cobb, delivering the opinion of the court, said: “The jury should have been fully instructed as to their duties in reference to this question; and the law applicable to any phase of the case resulting from their finding as to the character of the weapon should have been embraced in the instructions of the judge. If they found that the weapon used was one likely to produce death, in the manner in which it was used, then, if the accused was not justified under some rule of law in using the weapon in the
In the Taylor case, supra, there was evidence that the weapon used was a piece of wood, and it caused the death; and it was held that the conclusion did not necessarily result that it was a weapon likely to produce death, or that the use of it established beyond controversy an actual intention to kill. In Farmer v. State, supra, a bottle was used and a blow therefrom did produce death, but inasmuch as the evidence did not show that the bottle used would ordinarily have produced death, a new trial was granted for the failure of the judge to charge the law relating to the subject of involuntary manslaughter in the commission of an unlawful act, although no request for instruction upon this subject was made. In Joiner v. State, 129 Ga. 295 (supra), Mr. Justice Beck, delivering the opinion of the court, held that “When in the trial of a person indicted for murder there is evidence from which the jury can find that the homicide resulted from a blow inflicted with an instrument which would not ordinarily produce death, . . it is error requiring the granting of a new trial for the judge to fail to charge the law relating to the subject of involuntary manslaughter in the
2. I have carefully read all of the evidence in the record which was produced in the trial in the court below, and have reached the conclusion that this evidence was not sufficient to show the guilt of the accused under the law. I have already referred to uneontradicted testimony showing that the death of the deceased might have been caused in several different ways with which the accused would have had no connection. Section 1010 of the Penal Code of 1910 declares when circumstantial evidence is sufficient to warrant a conviction. “To warrant a conviction on circumstantial evidence, the proved facts must not only be consistent with the hypothesis of guilt, but must exclude every other reasonable hypothesis save that of the guilt of the accused.” In Williams v. State, 113 Ga. 721 (39 S. E. 487), where there were perhaps more facts to arouse suspicion than in the case at bar, Mr. Chief Justice Simmons, delivering the opinion of the court, said: “The rule of law laid down by our code, as above quoted, is a wise one. It is taken from the common law, and has been the rule in this country and in England for centuries. Under this rule, if the State relies upon circumstantial evidence, that evidence must be so strong as to exclude every other reasonable hypothesis save that of the guilt of the accused. It must be inconsistent with his innocence. This court has ruled on several occasions that, in cases involving'life or liberty, this rule must not be relaxed. When a heinous crime has been committed in a community and the people are greatly shocked thereby, it is natural for them to catch at any little circumstance to throw suspicion upon some person and conclude from this or that circumstance that he is the guilty party. . . This is demonstrated by the records of cases passed upon by this court, commencing with the earlier volumes of our reports and continuing almost
In Orr v. State, 34 Ga. 342, a new trial was granted because the verdict was contrary to evidence. “To convict upon circumstantial evidence, the proof must exclude every reasonable hypothesis but that of guilt.” In OrSs case, as in the ease now before us, the testimony was entirely circumstantial, and the court, in' its opinion, after quoting from 1 Stark. Ev. 575, and 1 Greenl. Ev. 13, quotes the following from 3 Greenl. Ev. 29: “For it is not enough that the evidence goes to show guilt; it must be inconsistent with the reasonable supposition of his innocence.” “Where the pressure of the case is not upon the corpus delicti but upon the question who is the guilty party, and all the evidence inculpating the accused is circumstantial, it is error for the court to instruct the jury that the case is not founded entirely upon circumstantial testimony, but that there is both positive and circumstantial evidence.” Simmons v. State, 85 Ga. 224, 228 (11 S. E. 555), citing Orr v. State, supra, and Martin v. State, 38 Ga. 293. In the case at bar the circumstances leave in doubt both the corpus delicti (for the deceased
Lead Opinion
The determination of all the questions raised in the record depends ujion a consideration of the evidence, and the movant has not briefed the evidence in accordance with the statute relating thereto (Civil Code of 1910, § 6093). There was not even an attempt made to abbreviate the evidence, and this court can not, under the law, consider the evidence thus brought up as a compliance with the statute requiring a brief of the evidence to be a condensed and succinct brief of the material portions of the oral testimony; and consequently the judgment of the trial court refusing a new trial must be affirmed. Smith v. Ray, 93 Ga. 253 (18 S. E. 525); Price v. High Co., 108 Ga. 145 (33 S. E. 956).
Judgment affirmed.