41 Ga. App. 333 | Ga. Ct. App. | 1930
The indictment jointly charges Math Cain and his two sons, Elbert Cain and J. C. Cain, with murdering L. J. Henry “by striking and beating the said Henry with' a certain blunt instrument .to the grand jurors unknown.” Math Cain was tried separately and found guilty of voluntary manslaughter. The exception here is to the judgment overruling the motion for a new trial, based upon the usual general grounds and several special grounds.
It appears from the testimony of two doctors, sworn for the State,
There was in the case some evidence from which the jury could. have concluded that the Cains had formed a conspiracy to attack Henry. On the other hand, according to the defendant’s statement at the trial and the testimony of his witnesses, the difficulty was not premeditated or expected by them. The substance of the defendant’s case is that J. C. Cain was going to his home by his usual route after a day’s work, and that when the other Cains approached the place in the road near the terrace on their way to buy some chickens, they saw Henry with his shot-gun drawn on J. C. Cain; that Elbert got out of the automobile in which he was traveling and approached Henry in order to take the gun from him to keep him from shooting J. C. Cain; that Henry pointed his gun towards Elbert, and Elbert seized it; that a struggle ensued between Henry and Elbert for the possession of the gun, during which they fell to the ground several times; that in falling Henry struck his head against some hard substance on the ground and was wounded on his head; that the defendant never had any gun, and never pointed a gun at Henry; that when Elbert finally got Henry’s gun, the difficulty ended; that though the Cains had every opportunity to shoot Henry, they made no effort to do so; and that Henry walked away, and no one knew that he was seriously hurt.
This case has already been reviewed by this court. See Cain v. State, 39 Ga. App. 128 (146 S. E. 340). The. evidence appearing in the record on the first trial of the case does not materially differ from that in the present record. Upon the first appearance of the case here it was held: “Since, under the contention of the State, the guilt of the defendant in this case depended upon a conspiracy, and the evidence of the conspiracy was wholly circumstantial, the court should have charged the law relative to circumstantial evidence.” What was said then is the law of the case now.
In the trial which we are now reviewing, the court charged that the conspiracy must be shown “by proving facts consistent with the hypothesis of the existence of such conspiracy, and to the exclusion of every other reasonable hypothesis save that of the existence of
When this case was here before this court said that while the verdict was not absolutely demanded by the evidence, “there was an abundance of evidence to authorize the verdict of voluntary manslaughter.” The same is true of the present ease. It will be observed that the judge applied the rule of circumstantial evidence directly and specifically to the only feature of the case depending entirely upon that sort of evidence, and that in so doing he meticulously safeguarded the rights of the defendant. The court also fully and clearly instructed the jury as to the law of reasonable doubt and the law controlling the defendant’s statement. Furthermore, the court presented to the jury every possible hypothesis arising from the evidence favorable to the defendant. See Sellers v. State, 36 Ga. App. 653 (137 S. E. 912); Reynolds v. State, 23 Ga. App. 369 (98 S. E. 246); Mangum v. State, 5 Ga. App. 445
Special ground 5 complains that the court erred in so frequently charging the law of " reasonable doubt,” while confining his charge upon circumstantial evidence to the conspiracy. The law of reasonable doubt should be charged in every criminal case, and this, of course, includes a case depending entirely upon circumstantial evidence. Hamilton v. State, 96 Ga. 301 (22 S. E. 528); Norman v. State, 10 Ga. App. 802 (74 S. E. 428); Thurman v. State, 14 Ga. App. 543 (6) (81 S. E. 796). In the case at bar it was necessary for the judge to charge the law of murder, justifiable homicide, voluntary manslaughter and involuntary manslaughter. We do not conceive that it was improper for him to charge on "reasonable doubt” in conpection with each of these subjects. Furthermore, it was not incumbent upon the judge to charge the law of circumstantial evidence in immediate connection with each charge upon "reasonable doubt.” Tarpe v. State, 95 Ga. 457 (20 S. E. 217); McNaughton v. State, 136 Ga. 600 (3), 614 (71 S. E. 1038). We are of the opinion that special ground 5 discloses no reversible error.
Ground 6 complains that the court failed to give the jury the following requested charge: "In criminal law the word ‘abet’ means to encourage, or set another on to commit a crime. To abet another to commit a crime is to command, procure, or counsel him to do it; and presence and participation are necessary to constitute one an abettor.” The charge requested is taken from Brooks v. State, 128 Ga. 261, 263 (57 S. E. 483, 12 L. R. A. (N. S.) 889). In that case it was stated that the trial judge erred because his charge "did not present the idea that presence and participation in the act of killing a human being was not sufficient evidence of consent and concurrence in the perpetration of the act by one who is sought to be held responsible as an aider and abetter in the killing, unless such person participated in the felonious design of the person killing.” It was further stated that the ease was close, and that the failure to charge as requested was error. In charging the law of voluntary manslaughter iu the case at bar, the court instructed the jury that in order to convict the defendant they must believe that “the defendant on trial joined in the criminal intent.”
Ground 7 complains that the court failed to give a requested charge to the effect that participation of the defendant in the act of killing “would not be conclusive evidence of his consent and concurrence in the perpetration of the offense charged, unless he aided and abetted the act of killing and participated in the felonious design.” In view of the court’s charge that the burden was upon the State to show that “the defendant on trial joined in the criminal intent,” and in the light of the full and fair charge as a whole, this ground does not show reversible error.
Ground 8 is practically the same as ground 7, and shows' no reason why the judgment should be reversed.
Ground 9 complains of the court’s failure to give a requested charge, the gist of which is stated in this language: “Before you
would be authorized to find the defendant Math Cain guilty of the offense of murder or of voluntary manslaughter it would have to appear from the evidence or from the defendant’s statement that such conspiracy comprehended or included an intent, either express or implied, to kill the said L. J. Henry.” In the light of the court’s full and fair charge upon conspiracy and the scope thereof, this ground discloses no reversible error. Note quotation of a part of the court’s charge upon the law of conspiracy in the first division of this opinion.
Ground 10 complains of the court’s failure to give a requested charge to the effect that if Elbert Cain formed a separate intent to kill Henry and the defendant did not participate therein, the defendant could not be convicted of murder or voluntary manslaughter. The court’s charge amply took care of the principle of law
Ground 11 alleges that the court erred in failing to give a requested charge to the effect that if the proved facts of the case were as consistent with innocence as with guilt, the jury should acquit the defendant. The court applied the law of circumstantial evidence to proof of the conspiracy, fully and fairly charged the law concerning the presumption of innocence, and specifically instructed the jury as follows: “Of course, if you should have a reasonable doubt of his guilt of voluntary manslaughter, it would be your duty to acquit him.” Furthermore, the court applied the doctrine of reasonable doubt to each feature of the case. We do not see that any possible harm could have been done the defendant by the refusal of the judge to give the charge requested, and we hold that'this ground shows no reversible error.
Ground 12 complains of the court’s refusal to give a requested charge upon the law of circumstantial evidence. In the light of the fact that the judge did charge the law of circumstantial evidence in relation to the only feature of the case dependent solely upon that sort of evidence, and in the light of his full and fair charge as a whole, this ground does not disclose reversible error.
Ground 13 complains of the court’s refusal to give a requested charge upon dying declarations. The requested charge covers a closely typed page of paper. A part of it is as follows: “It must be born in mind that the author of the testimony is not subject to cross-examination; that, like all human beings, he may be subject to passion and revenge; that his physical condition may have militated against a clear statement of what actually occurred; or he may have given expression rather to his opinion of what occurred than to facts actually resting in his knowledge.” While the foregoing language might be appropriated for a text-book or a general discussion of the subject in the decision of an appellate court, we do not think it suitable in a charge to a jury. After an able discussion of dying declarations in the case of Baker v. State, 12 Ga. App. 553 (77 S. E. 884), Judge Pottle said that the judge should simply charge the jury when and under what circumstances an alleged dying declaration, should be considered by the jury, and leave them free to determine what weight to give this species of evidence. The judgment in that case was reversed because the following
Ground 14 complains of the court’s failure to give a requested charge upon the law of the impeachment of witnesses which stated that if the witness testifying to Henry’s dying declarations had previously made contradictory statements in regard to such declarations, “it would be your duty to disregard said testimony and refuse to consider the same, in the absence of proof of general good character of such witness, — upon proof of which the effect of such evidence would be left to he determined by the jury.” The credibility of a witness is to be determined by the jury; and it is error for the court to instruct the jury that if they believe a witness has made previous statements contradictory to his testimony delivered on the trial, such testimony should be disregarded unless it “is corroborated by other credible evidence, or is corroborated by the proven circumstances in the case.” Waycaster v. State, 136 Ga. 95 (3) (70 S. E. 883). The opinion cited concludes in these words: “Even if the jury believe that a witness has made previous statements contradictory of statements 'made in his testimony, the jury may believe the latter statements to be true, and this the jury is authorized to do even though such statements are not in any way corroborated.” In this connection see Civil Code (1910), § 5884.
Ground 15 complains that the court failed to charge section 1024 of the Penal Code (1910). It is perfectly apparent that this code-section concerns merely the admissibility of evidence, “The
Judgment affirmed.