4 Ga. App. 486 | Ga. Ct. App. | 1908
Sam Bates was indicted in the superior court of Jasper county for the crime of murder. He was convicted of voluntary manslaughter, and his motion for a new trial was overruled. The motion for a new trial contains numerous assignments of error, complaining of the admission of testimony, of the charge of the court; and of the failure to charge, and that the verdict for manslaughter is without evidence to support it. These assignments will be considered in their order so far as material, and will be fully understood by the following brief statement of the evidence: The State introduced the only witness who saw the homicide, and this witness testified, that the defendant, the deceased, and himself, on the day preceding the homicide, were out hunting birds; that during the afternoon they began drinking whisky, and about night they went into an old house called the
The defendant introduced no evidence, but relied upon his statement. This statement corroborated the testimony of the one witness for the State as to the hunting, drinking, and playing cards, and gave the following account of the homicide: “I caught Rowe [the State’s witness] dealing himself six cards, and I said I was going to quit. They said, ‘Don’t jump us that way. Come on back;’ and I thought I would play a little more.” “Ed, [the deceased] had pawned me his gun for $5. . . When I said I was going to quit, they said ‘Don’t jump us that way. Come on back.’ . . I had Ed’s gun, and I sat it down by the side of the fire board, and they wanted me to come over here [indicating], and I didn’t think about any fuss. I was playing, and Rowe kept on drinking and fussing around more than any of us, like he always does. I said ‘I am going home.’ I said, ‘Come on, Woody;’ and Rowe jumped up and jerked out his knife, and said, ‘God damn you, you shan’t jump us this way;’ and Ed said, ‘I would rather die and be in hell than to be treated this way;’ and I said, ‘There is no use in your cutting up this way, I am going home;’ and I picked up the single-barrel gun and started to get that other gun, and Ed beat me to it, and Rowe staggered up towards me and I began backing oif; and by that time Ed had raised up with the gun, sorter sideways to me, and had his back to me, sorter fooling with it, and I heard it click, and I said, ‘Ed, put that gun down;’ and Rowe said ‘Kill the damn jumping son of a bitch,’ and Ed said ‘Put down hell,’ and Ed threw the gun down this way [indicating], and I shot, and Rowe jumped right across Ed’s head, and I said, ‘You pick up that God damn gun and I will kill you.’ Then he run in there and he started back, and I throwed my gun up this way, and he dodged behind the door, and I shot through the door that led in there. Then I went and called the negro. Tie saw me when T shot Ed. T called him to come back in there.
We will decide specifically only those assignments of error which we think entitle the plaintiff in error to another trial.
We would be satisfied with the correctness of this conclusion even if it did not find support in any adjudicated case. But the Supreme Court has, we think, decided practically the same principle in several cases. In Cox v. State, 124 Ga. 95 (52 S. E. 150), it is held, that “Where a witness has testified to a material fact, prior declarations of his which appear to be inconsistent with the facts related by him on the trial are competent for the purpose of impeachment.” In the instant case the witness testified to material facts that, if believed, proved the murder. The declaration attributed to him not only appeared to be inconsistent with these facts, but was in fact strongly and clearly inconsistent therewith. “The testimony of the witness was inculpatory. His previous declaration was exculpatory. The two were in direct antagonism.” In Central Railway Co. v. Trammell, 114 Ga. 312 (49 S. E. 259), the court states the rule as follows: “In a case of the character disclosed by the present record, it is competent to prove, for the purpose of impeaching a witness who has testified that the fire was caused by other agencies than the railroad company, that on the night upon which the fire occurred he expressed a decided conviction that the fire was caused by the railroad company.” In the opinion the court says: “Of course, proof of the previous statement did not necessarily show that his statement at the trial was false; but we think the jury should have been allowed to consider the evidence that he had, on a former occasion, expressed a very decided conviction, whether it was founded on sufficient reasons or not, that the fire was caused by sparks from the defendant’s engine.” In Jordan v. State, 120 Ga. 864 (48 S. E. 352), the court uses this language, “Where, in the trial of one accused of seduction, a witness for the accused has given testimony tending to show lewd conduct on the part of the prosecutrix, which, if true, was known to the witness prior to the time of the alleged seduction, declarations to third persons, made by him subsequently to that time, not in the presence of the accused, tending to show that he thought the prosecutrix a chaste and virtuous female, are admissible in evidence, after proper foundation laid, to impeach the witness.” Proof of previous statements of witnesses,
The defendant introduced no testimony, but relied upon his own statement. In this statement he declared, that the deceased raised the gun towards him and he heard it click, and he called to the deceased to put the gun down, and that the deceased replied, “Put down hell;” that the third party present, the only witness for the State, called upon the deceased to “kill the damn jumping son of a bitch” (meaning the defendant) ; and that the deceased thereupon drew the gun upon him> and shot, to save his own life. It will thus be seen, from this brief statement, that there was no middle ground; that if the evidence for the State was the truth, the verdict should have been for murder; that if the defendant’s statement was the truth, the defendant should have been acquitted; and that the charge on the law of voluntary manslaughter led the jury away from the consideration of the truth as it existed in the evidence, or from the truth as it existed in the prisoner’s statement, and induced them to agree on a compromise verdict, without any evidence whatever to support it. Therefore, following the repeated rulings of the Supreme Court and of this court, we are constrained to hold in this case that the law of voluntary manslaugh
Judgment reversed.