Brady v. State, 159 Ga. 469

Brady v. State

159 Ga. 469 | Ga. | 1924

Lead Opinion

Hines, J.

(After stating the foregoing facts.)

The defendant complains that the trial judge erred “in failing to instruct the jury that, to authorize a verdict of guilty in said *480case, the evidence must have connected movant with the perpetration of the offense of murder alleged against him.” The judge instructed the jury that the case was dependent upon circumstantial evidence, and that to warrant a conviction upon such 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. The specific error alleged is, that the judge should have instructed the jury, in connection with the above instruction upon circumstantial evidence, that to authorize a verdict of guilty in this case, which rests solely upon circumstantial evidence, the proved facts must connect the defendant with the perpetration of the offense charged. Undoubtedly whether the evidence is entirely circumstantial or direct, it ought to connect the defendant with the criminal act. Newman v. State, 26 Ga. 633; Green v. State, 111 Ga. 139 (36 S. E. 609). While this is true, we do not think that the trial judge erred, in the absence of a timely written request for such instruction, in failing to charge the jury that the circumstantial evidence must connect the accused with the crime charged against him. Counsel for the defendant, in support of his contention that such failure is error, relies upon the case of Hamilton v. State, 96 Ga. 301 (22 S. E. 528), in which it was ruled that in a criminal case, when “the evidence against the accused was entirely circumstantial, it was the duty of the judge not only to charge upon the law of reasonable doubt, but also, whether so requested or not, to state to the jury the rule usually applicable in such cases, to the effect that the evidence must connect the accused with the perpetration-of the alleged offense, and must not only be consistent with his guilt, but inconsistent with every other reasonable hypothesis.” In McElroy v. State, 125 Ga. 37 (53 S. E. 759), and in Wilson v. State, 152 Ga. 337 (110 S. E. 8), this rule is stated in substantially the same language. But an examination of these cases will disclose that this court was dealing, not with the precise question raised here, but with the failure of the court to charge at all upon the question as to when the weight of circumstantial evidence was sufficient to authorize the jury to convict. The court in the Hamilton case did not give to the jury the principle of law laid down in the Penal Code, § 1010, as was done by the judge in this case. While we think that an instruction in the language set out in .the Hamilton, McElroy’, and Wilson cases *481would be entirely correct and appropriate, we do not think that, when the judge charges the jury the principle of law announced-in the above Code section, his failure, in the absence of a pertinent written .request, to instruct the jury that the facts proved must connect the defendant with the offense against him requires the grant of a new trial.

The defendant insists that the court erred in failing to charge the jury “that before the jury would be warranted to convict the defendant, the evidence must be sufficient to establish his guilt to a moral and reasonable certainty and beyond a reasonable doubt.” The judge.instructed the.jury that the defendant entered upon his trial with the presumption of innocence in his favor, and that “that presumption follows-him throughout the entire trial, and at every stage of the trial, until his guilt has been proven in the manner and form that the court will hereafter give you in charge.” The court then told the jury in what manner and. form the guilt of the accused must be proved, by giving them this charge: “Whether dependent upon positive or circumstantial evidence, the true question in criminal cases is, not whether it be possible that the conclusion at which the testimony points may be false, but whether there is sufficient testimony to satisfy the mind and conscience beyond a reasonable doubt.”- The court further charged the jury “that in any event, any evidence whatever of alibi is to be considered by the jury on the general case with the rest of the testimony; and if a reasonable doubt is raised by the evidence as a whole, the doubt must be given in favor of innocence.” He further instructed the jury that the law does not permit one to be convicted on suspicion, however violent the suspicion might be. In view of the fact that the court, in effect, instructed the jury that, before they would be warranted in convicting the defendant, the evidence must be sufficient to establish his guilt to a moral and reasonable certainty and beyond a reasonable doubt, the complaint that the court erred in failing to charge the jury as above set out is without merit: McBeth v. State, 122 Ga. 737 (50 S. E. 931). If the defendant desired further instruction on this subject, he should have presented a pertinent, timely request therefor.

The court charged the jury as follows: “Now the court will give you in charge the law as to implied malice, that is, that character of malice which the jury is allowed to imply.” The *482charge’ of the court upon the subject of implied malice is not set out in this ground of the motion for new trial complaining of this charge. The error assigned is that this charge was misleading in that it amounted to an instruction that the jury were allowed to imply malice in this ease, and because it amounted to an expression of opinion by the court as to the facts of the case. The objections to this charge are without merit. The statement by the judge that he would give in charge to the jury the law as -to implied malice, “that is, that character of malice which the jury is allowed to imply,” did not amount to an instruction that the jury could infer malice without regard to the facts of the case, and certainly contains no expression of opinion upon the evidence.'

The defendant asserts that the court erred in failing to charge the jur„y that “If a witness swear wilfully and knowingly falsely, his testimony ought to be disregarded entirely, unless corroborated by circumstances or other unimpeached evidence.” In the absence of a pertinent, timely request, the failure of the court to charge on the subject of impeachment of witnesses 'affords no ground for granting a new trial. Perdue v. State, 135 Ga. 277 (6) (69 S. E. 184); Benjamin v. State, 150 Ga. 78 (102 S. E. 427).

It is earnestly insisted by able counsel for the defendant that the verdict is without evidence to support it. This question has troubled us. The case against the defendant is a weak one; but after a careful consideration of the facts and circumstances of the case, we do not feel justified in holding that the verdict is without evidence to support it. We will state succinctly the evidence upon which the State relies for conviction. The case is one entirely of circumstantial evidence. In April before the homicide in November, the deceased and the defendant had a difficulty in which the defendant was cut by the deceased. After the cutting the defendant got one Henry Covington to take him to a doctor. On the way, the defendant said to Covington that he would kill Sewell before the sun rose the next morning. The defendant on this journey repeatedly said he would kill the deceased. On the morning after the return from the doctor’s, Covington visited the defendant’s house. The defendant had a pistol, and tried to get his wife and mother to let him go and kill Sewell. -He said that he was going to kill Sewell if he’ could get there. His wife and others persuaded him not to go, telling him that it would cause *483trouble. He told them that he would not go then, but that he would go sometime. In April, 1923, the defendant had a conversation with Martha Covington, in which he referred to the fact that the deceased had stabbed him; and told this witness that, if she heard of the deceased being killed, she might say that it was John Brady that did it. About a week later she was passing defendant’s house when the defendant repeated the above statement to her. In September before the homicide in November, Milsaps and the defendant were working the road. The defendant, referring to the fact that Milsaps had pulled the defendant off of the deceased in the difficulty in which the defendant was cut by the deceased, said to Milsaps that he was willing to make friends with him; but as to the deceased, he was going to “whip hell out of him.” On the afternoon of the day of the homicide, the deceased was working at the sawmill of one Byers. As soon as he got there he said to Byers that he had been in pretty bad shape since the deceased cut him, and that he had a good notion to go out to where the deceased was working and “frail hell out of him.” Byers told the defendant that he would rather he would not have any trouble at the mill.The defendant replied that he would not, but that he would see the deceased later. The defendant then left the mill; and in something like an hour and a half or two hours after the defendant left the deceased was killed.

Andy Covington, a boy fourteen years of age and a fellow servant of the deceased, left the mill when the employees quit work, and had gone about 50 or 75 yards, when he heard the pistol shot which dispatched the deceased, and saw a man running from the scene of the homicide. He testified that he did not know whom the fleeing man looked like, although he was well acquainted with the defendant, that he did not see the kind of clothes the man had on, that he did not see his face, but that he was about the defendant’s height and size. On being recalled to the stand, this witness testified that the defendant had on blue overalls on the-day of the homicide, that the man he saw running from the scene of the homicide had on overalls which looked like the same ones which the defendant had on at the mill, and that they were of the sort that practically everybody wore in that country. The defendant was a man weighing about 200 pounds.

Is the evidence sufficient to support the verdict? There was *484bad blood on the part of the defendant towards the deceased. He entertained bitter and extremely hostile feelings towards the deceased from the time when he was cut by deceased in the preceding April. This hostility might have been due to the fact that the deceased had reported the defendant’s brother for illicit distilling. Defendant made repeated threats. The last of these threats was made on the afternoon of the day of the homicide, and a short time before it took place. This last -threat was made at the sawmill where the deceased was working. When requested by the proprietor of this mill not to have any difficulty with the deceased, the defendant said that he would see the deceased later. The employees at the mill quit work at 5 o’clock, and the deceased started for his home. It was not over five minutes before a pistol shot was heard in the direction in which deceased had gone and where he was found shot about 150 yards from the mill. The defendant made a statement in which he denied guilt, and introduced evidence to establish an alibi. The evidence discloses a strong motive for the commission of the homicide by the defendant. He had been stabbed by the deceased, and was possessed of a strong and abiding feeling of revenge. Qn the day of the difficulty in which he was cut by the deceased, and at different times, and down to the afternoon of the homicidé, he- made bitter threats against the deceased. These repeated threats indicated fixed and bitter bad feeling towards the deceased. When he made the last of these threats at the sawmill, and when requested by the proprietor of the mill not to attack the deceased while at work at the mill, he replied that he would see the deceased later. Shortly thereafter the employees at the mill, including the deceased, quit work. The deceased started toward his home. This was in the direction of the defendant’s residence. In five minutes after the deceased started to go to his home, a pistol shot rang out in the direction in which he had gone. The deceased was found with a mortal wound inflicted by a pistol. A boy who was fifty yards from the scene of the killing saw a man about the height and size of the defendant running away. This man wore blue overalls like those worn by the defendant on the day of the homicide and shortly before the deceased met his death. This circumstance, though slight, in view of the fact that blue overalls were generally worn in this community, furnished some proof of the identity of the defendant with *485the man seen fleeing from the scene of the crime. Much stronger facts, establishing this identity, are (1) that the defendant went to the place of work of the deceased an. hour and a half or two hours before the homicide, told his employer that he had a good notion to “frail hell out” of the deceased, and, when told by the employer that the employer would rather he would not have any trouble at the place, replied that he would not, but would see the deceased later; (2) that at the expiration of the above time the deceased was killed; and (3) that the defendant was a large man, weighing 200 pounTds, and that the man seen running away was of about the size and height of the defendant. Coupling these facts with the bitter hatred of the defendant to the deceased, and his repeated threats, which indicate a fixed and settled purpose on his part to take the life of the deceased in revenge for a past injury, we can not say that the verdict, is without evidence to support it.

Under our system of jurisprudence, juries are our chosen agencies for the determination of issues of fact. If they go far. afield and render verdicts without evidence to support them, this court will set them aside; but if there is evidence to support their verdicts, and their verdicts receive the approval of the trial judges, this court will not set them aside.

Judgment affirmed.

All the Justices concur, except Russell, 0. J., dissenting.

Rehearing

ON MOTION ROE REHEARING.

Hines, J.

In the defendant’s motion for a rehearing it is urged that this court, in making the statement that the hostility of the defendant to the deceased “might have been due to the fact that the deceased had reported the defendant’s brother for illicit distilling,” erred because the evidence does not show that the deceased had reported the defendant’s brother for illicit distilling. The writer inadvertently made this statement. This inadvertence does not affect in any way the soundness of the conclusion reached by this court in this case. It is the existence, and not the origin, of the fixed hostility of the defendant to the deceased which is of importance in this matter.

It is further insisted that the court overlooked the cases of Bailey v. State, 104 Ga. 530 (30 S. E. 817), Williams v. State, 113 Ga. 721 (39 S. E. 487), Patton v. State, 117 Ga. 230 (43 S. E. *486533), Young v. State, 121 Ga. 334 (49 S. E. 256), and Park v. State, 133 Ga. 164 (51 S. E. 317). The writer did not overlook those caSes in preparing the opinion of the court in this case. On the contrary, each one of them was read and' considered. Those cases dealt with the question whether the evidence upon which the convictions therein rested was sufficient to authorize the verdicts of guilty therein. While helpful in passing upon the question in this case whether the verdict was without evidence to support.it, it was not necessary to review the evidence in detail in those cases, in determining this question. In those cases this court held that there was not sufficient evidence. In this case, after careful consideration of the evidence, we reached the conclusion that there was some evidence to support the verdict, and that for this reason we were not authorized to usurp the place of the jury and declare the defendant not proved to be guilty. Rehearing denied.