15 S.E.2d 240 | Ga. | 1941
1. Where the State's evidence upon a trial for murder showed that the defendant, when asked why he killed the deceased, replied that he did not know, "people do squirrelly things sometimes," and that he went upon the hill and wondered why he did it, and thought of taking his own life, a charge to the jury on the law of confession was authorized by the evidence. The answer by the accused admits the commission of the crime charged, and does not make a case where only a minor subordinate fact is admitted which could be true whether the main fact existed or no, or a case where the defendant simply refuses to make any answer whatever.
2. A charge to the jury that the defendant is presumed to be innocent; defining a reasonable doubt; instructing the jury that they are the judges of the credibility of witnesses; enumerating the things the law authorizes the jury to consider in passing upon the credibility; and instructing them that all witnesses are presumed to be credible unless impeached or discredited, and that the law does not presume the statement of the defendant to be true or untrue, and the jury may believe the statement in preference to the sworn testimony, not capriciously and arbitrarily, but in search of the truth, is not an incorrect statement of the law as to the weight and credit to be given witnesses testifying under oath. The law presumes that witnesses who testify are credible and worthy of belief, unless impeached or otherwise discredited. Neither is the charge repugnant, as contended.
3. A remark of the judge when ruling upon an objection to evidence during the progress of the trial, even if erroneous, can not be made a ground of a motion for a new trial when no motion to declare a mistrial or other objection was made before a verdict was rendered. But, if properly excepted to, the remark here complained of was not injurious to the defendant, and would not constitute reversible error, since the defendant in his statement made substantially the same remarks to the jury. *131
4. The verdict of guilty is supported by the evidence, and the general grounds of the motion for a new trial are without merit.
The defendant made a statement to the jury, in substance as follows: He did not say he was absolutely innocent, but he did say that he was not guilty "as the State has proved me to be." In Memphis on December 18 he met a friend on the street, and this friend at his request witnessed his marriage. In the meantime he told this friend that he had about a thousand dollars worth of narcotics, and the friend told him that he had connections in Atlanta where he could sell the narcotics for $500 or more. He told the friend, Charlie Butler, that he would give him a percentage if he would sell the narcotics. So they started from Memphis, the three of them, the defendant, his wife and Charlie Butler. Charlie Butler was from Missouri, and was known as Harry Hobart. He was wanted in Missouri, and that was the reason defendant had not told the officers. On the night of the 20th they came down to *133
Chattanooga, and after getting something to eat they came on into Georgia with Charlie Butler driving. The officers drove up behind them and blew the siren, and Butler pulled to the side of the road and parked. The officers parked their car about ten feet behind the defendant's car. Officer Black came to the side of their car and asked what was wrong, and Butler replied that the road was bumpy. Officer Black asked to see Butler's driving license, and Butler stepped out of the car, whipped his gun from his jacket, and said something to the officer. Then the officer grabbed him, and Charlie shot three times at the officer, who fell in front of the car. The defendant got scared, and when officer Farr came to the front of his car and started shooting at Charlie and Charlie ran across the road, the defendant jumped out of the car and ran down the road about eighty-five yards. He stopped, thinking about leaving his wife in trouble, and started to go back, but thought of the fact that he was an escaped lifer out of Missouri, and if he went back he would have life to do. He heard Charlie crashing through the woods and saying that he was shot. He found that Charlie was shot in the armpit and bleeding violently. He tried to get a tourniquet around his arm to stop the flow of blood, but couldn't get it tight enough. He helped and carried Charlie over the route to Chattanooga, and there Charlie gave defendant his gun, the one with which he shot officer Black and which was taken from him when he was arrested; and they separated. On the night of his arrest he stole an automobile, drove it down the road about three miles, saw some officers and jumped out of the car; and the officers followed him. He could have killed one of the officers who had a miner's cap on, if he had wanted to. In a supplemental statement he explained the sore on his hand, saying that it was caused by a number six shot which went through his hand, and said he got hit when fleeing from officers at Decatur, Tennessee. He also said that a number eight shot hit him in the leg. He denied that he was shot on the night of the killing, and concluded by saying: "I don't say I am innocent. I don't deny the gun was caught on me. I don't deny that that was the gun that killed the officer. I don't deny the bullets were taken from the officer. All I deny is that I was the one that fired the gun and killed the officer. . . I admit I was there. I admit I was with the man that killed the officer, but I say I am innocent of killing the man. I guess that is all, gentlemen." *134
1. The first special ground of the motion for new trial assigns error on the instruction to the jury on the law relating to a confession as evidence. It is contended that the charge was not authorized by the evidence, was not adjusted to the issues in the case, and caused the jury to believe that the judge thought there was evidence of a confession. The evidence shows that upon being asked why he killed the deceased the defendant answered that he did not know, that people acted "squirrelly" sometimes, and that he laid upon top of the hill and wondered why he did it and thought of killing himself. When the question is made a part of the answer, as it must be to make it intelligible, it amounts to an assertion by the defendant that he killed the deceased, followed by the explanation as to why as set forth in his answer. It therefore shows a confession of the crime as charged in the indictment. In Bowden v. State,
The main case relied upon in support of this complaint isAllen v. State,
2. Special ground 2 complains of an excerpt from the charge which states that the defendant enters upon the trial with the presumption of innocence in his favor, which presumption remains with him unless overcome by evidence sufficient to convince the minds of the jurors of his guilt beyond a reasonable doubt; then defines a reasonable doubt and explains how it may arise; then instructs the jury that they are the exclusive judges of the credibility of witnesses, and what they are authorized to consider in passing upon this credibility; explains that the defendant has a right to make such statement as he deems proper, and that the jury may give it such credit as they think it entitled to, and may believe it in preference to the sworn testimony; then instructs them that the law presumes all witnesses credible and worthy of belief, and that they will not wilfully swear falsely, but further states that the presumption of law that witnesses will not testify falsely is only a prima facie presumption and is not conclusive, and that unless impeached in some manner provided by law, or otherwise discredited in the judgment of the jury, they are presumed to speak the truth. The judge further instructs the jury that it is their right and duty to consider the statement of the defendant, and that they may believe it in preference to the sworn evidence, not capriciously and arbitrarily but in search of the truth; and that there is no presumption touching the defendant's statement, no presumption that it is true and no presumption that it is untrue. The complaint is that the charge is argumentative, prejudicial, and is an incorrect statement of the principle of law as to the weight and credit to be given witnesses testifying under oath, and that there is no presumption of law that witnesses who testify *137
are credible and worthy of belief, and that the charge is confusing and repugnant. It is the function of the jury, under proper instructions from the court, to determine the credibility of witnesses. Code, § 38-1805. The charge under attack fully instructed the jury to this effect, and as to the matters they were authorized to consider in determining the credibility. Every attack made upon the charge here complained of is answered adversely to the movant by the decision of this court inCornwall v. State,
3. Special ground 3 complains of a statement made by the court in response to an objection by the defendant's counsel to the testimony of State's witness Bawman that he had seen the pistol in the case, the statement objected to being: "I will overrule the objection. So far as the record is concerned, it appears in the record without dispute that this is the gun which caused the death of Corporal Black. The defendant in his own statement says that that is the gun; he just denied that he is the man that had the gun; he just contends that he got the gun from Butler after the killing." The criticism of this statement is that it was an expression of an opinion of what had been proved, and of what the defendant said in his statement, and was not authorized by either the evidence or the law, and invaded the province of the jury. Then follows what movant contends is a copy of all of the evidence, including the defendant's statement, relating to the gun. Whether or not the criticism of the judge's statement is well founded, a review can not be had on the question, since the objection was raised for the first time in the motion for new trial. The rule on this question has been announced repeatedly by this court. In Perdue v. State,
4. The verdict of guilty is supported by the evidence, and the general grounds of the motion for a new trial are without merit.
Judgment affirmed. All the Justices concur.