160 Ga. 593 | Ga. | 1925
Lead Opinion
(After stating the foregoing facts.)
In the first ground of the motion for a new trial error is assigned upon the following extract from the charge of the court: “I call your attention to the point mentioned by the counsel of the defendant to the jury, that this defendant has been previously tried, and the record now appears on the indictment. He said that the verdict had been set aside. I will state that I granted the defendant a new trial on account of an error I made in instructing the jury. You are not concerned with any other trial, and you are not to be influenced by anything that occurred as to the granting of the new trial.” In view of the fact that counsel for the defendant in his argument to the jury called attention to the judgment setting aside the first verdict of guilty, and that the jury might have been led to infer from this statement of counsel that the verdict had been set aside because the evidence did not authorize it, there was nothing improper in the court’s stating to the jury that the former verdict had been set aside and a new trial granted on account of an error in the court’s charge to the jury;
Error is assigned upon the failure of the court “to charge on circumstantial evidence, movant contending that all the evidence in any way connecting the defendant as an aider and abettor was circumstantial, though he admitted his presence.” We can not agree to the contention that all of the evidence tending to show that the defendant aided and abetted in the commission of the crime was circumstantial. The man who fired the fatal shot admitted the shooting, and testified in part: “The crowd ran one way or the other. Hood [the defendant] went on the east side of the house. He had the gun then. He handed it to me. E. K. [O’Neal, the deceased] ran through the field like he was coming angry towards us, and stopped. Some of the boys said, ‘Who is that?’ I said, ‘I don’t know.’ He said, ‘Find out who it is.’ He said, ‘Shoot and see who it is.’ . . Hood didn’t tell me to shoot him. He simply said to shoot, and that is all he said. He did not tell me to shoot when he gave me the gun. He handed me the gun when he walked behind the house. This man was running, and he stopped. Hood asked me what it was. I said, ‘I don’t know.’ He said, ‘Shoot and see.’ I thought I would sprinkle him, and I shot, and the shot killed him. I did not shoot to kill. I did not know the gun would kill a man that far. He was about 85 yards off. He was standing still, and it was dark where I shot, and I could not tell which way he was facing. It looked like he was facing me.” Evidently, from this testimony, the witness who committed the act of shooting the deceased knew that it was a man out in the field. While he testified that it was dark, it is clear from his testimony that he did not mean it was so absolutely dark that he could not perceive any object; for he testified that the deceased ran through the field towards him or towards the group, as if he was angry. He did testify that he
Error is assigned on the failure of the court to charge on the subject of impeachment of witnesses. There is no merit in this exception, as it does not appear that there was any written request for a charge upon this subject. We do not know of any other principle of law that has been so frequently ruled as this. See 11 Enc. Dig. Ga. R. 681.
The ruling made in the fourth headnote requires no elaboration.
Movant excepts to the failure of the court to charge upon the subject of involuntary manslaughter in the commission of an' unlawful act, and also in the commission of á lawful act without due caution and circumspection. The failure of the court to charge upon this subject was not error. Roscoe Holt, who had been convicted as principal in the first degree, and who was introduced as a witness for the State, shows by his testimony that the crime which he committed by shooting and killing O’Neal was murder. Read, in this connection, the testimony of Holt which we have quoted above. Consider especially the following brief restatement of a part of that testimony: “Hood had the gun then. He handed it to me. R. K. [meaning O’Neal, the deceased] ran through the field like he was coming angry towards us, and stopped. Some of the boys said, ‘Who is that?’ I said, ‘I don’t know.’ He [referring to the defendant in the present case] said, ‘Find out who it is.’ He said, ‘Shoot and see who it is.’ . . I thought I would sprinkle him, and I shot, and the shot killed him. I did not shoot to kill. Did not know the gun would kill a man that far.” But it did kill the man who was shot at. And the killing was not reduced to a lower grade of homicide merely because the man who fired the gun and the man who aided and
Evidently, though it was dark, Holt knew that the object, out in the field was a man. Hood — this defendant — told him to shoot. Holt’s testimony shows that when he shot and killed O’Neal he committed murder. Hood, this defendant, had handed him the 'gun and told him to shoot. If Holt was guilty of murder under these circumstances, Hood, aiding, abetting, and counseling the act done, was guilty as principal in the second degree of the same crime. This defendant made a statement which is in the record. He narrates the circumstances of the killing, but does not refer to the statement of the witness Holt and another witness wherein they swore that he said, “shoot.” His entire description of what happened at Dewberry’s house, where the killing occurred after the several groups of persons had arrived there after they left Ella Wilson’s house, is vague and obscure. Here is his narrative of what occurred as they left or were leaving the house of Ella Wilson and going to the Dewberry house: “Dus Moore walked behind him when he walked off, but I stayed behind there at the house. When R. K. got off a piece he turned around and came back and said, ‘Gr — • d — n you, somebody said you was killed.’ They then went off up the road and commenced shooting over on the other side of the branch. They shot twenty-five times. I slacked up and did not go in that crowd. On the way, before I caught up with the crowd, Roseoe and James Meadows passed me with a shotgun and asked me who it was shooting up there. I said it was the crowd that had passed on over there, and for them not to go up there and start anything. Roseoe said he was not going to start anything but to stop something. When he got near the crowd he called out for his papa to come to him. When he said that, the folks broke and run, some went to the left and some went to the right. I told them not to go toward the house or cross that way, they might get shot. Roseoe and James Meadows were as far from me as the middle of the court-house. I thought they had shot some one up there. There is a little round house out to the side of the road, and I turned and ran out towards it. I made two steps from the road and heard the gun fire over back of the house. I did not see the gun fire. I stopped right then, and James and
If Holt was guilty of murder in killing O’Neal (and it is clear that he was from the evidence), then this defendant was guilty in the second degree, if he aided, and abetted the act. And his own statement does not suggest guilt of a lower grade of homicide. In his statement he says, it will be noticed, after vaguely and obscurely narrating the events, as it appears from a quotation from his statement, “That’s all I know about it. I had nothing to do with it at all.” He denies his guilt of any crime. But the jury found his positive statement that he was not guilty to be untrue.
Error is also assigned upon the failure of the court to give in charge to the jury certain requested instructions. These are as follows: (a) “A principal in the second degree is a person
The court did not err in refusing these requests. In so far as they state the law applicable to the issues made by the evidence, they were sufficiently covered in the court's charge. The court actually charged upon the subject dealt with in these requests, as follows: “The principal in the second degree is one who was present aiding and abetting the act to be done; he would be a principal in the second degree. In this case he would be one, if there was one, who was present aiding and abetting the principal in the first degree to commit the offense; it is one who aids and abets within the meaning of the law. If the crime is committed, it is necessary that such person be not only present at the time the
The evidence authorized the verdict.
Judgment affirmed.
Dissenting Opinion
dissenting. I am in grave doubt but that the learned trial judge should have given in charge to the jury the law of involuntary manslaughter as applicable to the evidence óf the leading witness for the State himself. I recognize fully that every person is presumed to intend the legitimate consequences of his own act, and I am in full accord with the numerous decisions of this court in which it has been held that murder' will not be reduced to involuntary manslaughter, where death has resulted, under the pretense that the intention of the assailant was merely to wound. In this case, however, the State’s witness testifies that he was eighty-five yards from the deceased at the time that he shot. The weapon was a shotgun. His intention was not to wound or cripple, but merely to sprinkle. Without going into the details of the testimony it would seem that it was a jury question; that the intention of the accused was a jury question not solvable by the court.
I dissent from the ruling of the court as set forth in the first division of the opinion. It seems from the record that counsel for the defendant in their argument had referred to a previous trial, which was highly improper, and would have authorized interference
In my opinion the statement of a trial judge, in the presence and hearing of a jury passing upon the case of one who is for the second time being tried for a criminal offense, where a new trial had been granted the prisoner by the trial judge, which embodied the following instruction: “I call your attention to the point mentioned by the counsel for the defendant to the jury, that this defendant has been previously tried, and the record now appears on the indictment. He said that the verdict had been set aside. I will state that I granted the defendant a new trial on account of an error I made in instructing the jury,” would naturally tend to impress the jury with the conclusion that «the judge was perfectly satisfied with the evidence of the guilt of the accused; that he granted the new trial only because of what he conceived to be his error in the instructions upon the former trial. The remark, thus construed, as I am led by my experience to believe, would be the construction most naturally placed upon it by the jury. This in
