55 Ga. App. 207 | Ga. Ct. App. | 1937
Clifford, alias Jo Bo, Craig was jointly indicted with Myrtie Moore for the murder of J. Kitchens. They were tried together, and the jury returned separate verdicts of voluntary manslaughter. Craig excepted to the overruling of his motion for new trial. The shooting occurred on Sunday night at a filling-station located near Jefferson, Georgia, on the highway leading to Athens, Georgia, commonly known as “Dyson’s Station.” Kitchens died on the following Tuesday night. The deceased worked at this station, but was not on duty at the time he was killed. It appears that the defendant, Myrtie Moore, and the deceased drove up to this station about 10 or 11 o’clock, and were told by J. W. Segars, who was then in charge, that a poker game was in progress in the back room. They all went in to join the game. The State produced no evidence as to what really occurred in the poker room, except the testimony of J. W. Segars. According to this witness, possibly ten minutes after the three went into the back room, the deceased returned to the front of the station, asked for and procured his blackjack, and then returned to the game. In a short while, again possibly ten minutes, the deceased returned to the front of the station and procured his pistol. He returned to the back room, and nothing was heard until about ten minutes later, when witness heard loud talking and cursing, a general row, and thought he heard the defendant say “ You’re a G— d— lie,” and heard some one answer him in the same terms. A shot was fired, some of the players began to file out of the room, and shortly '“Jo Bo and some fellow came out scuffling over a gun. I did not know who he was.” The deceased then came out of the room and told the defendant to put up his gun and go home. “Jo Bo told him he wasn’t going anywhere and was not putting up his gun.” At this time the deceased held a blackjack. The defendant raised his gun towards the deceased “and J. [deceased]
A transcript of the testimony given by Frazier Oarithers at the commitment trial was admitted in evidence and read to the jury on motion of the defendant, after a proper showing as to his absence from the State (Code, § 38-314). It appears that when the trouble started this witness was in the station, drinking a bottle of beer. When the first shot was fired in the back room, he walked out of the station and stood by a gasoline pump. When he turned and looked he saw five, six or more men tussling together and saw Moore reach out to try to stop them. He then saw the deceased hit Craig with a blackjack. “Craig jerked loose from him and shot three times. I saw fire come out of his gun that many times. I did not see Moore shoot. Had Moore shot at that time I would have seen it, and I didn’t see it. Moore tried to separate them, and that is all I saw Moore try to do. . . I saw Mr. Moore with a gun in his right hand.” Witness only heard three shots, but he could have been scared and not heard the rest. “They all were so close together you could not tell just what was
The defendant introduced Dr. Stovall, who testified that he was called to the home of the defendant on Monday morning before daylight. “I found him suffering from two knots on his head, one large one about the size of an orange, and a smaller one about the size of a lemon. . . I found him semi-conscious. He remained in this condition two or three days.” In the opinion of this witness, the wounds were produced by a blunt instrument. He also treated Moore for a superficial scalp wound. H. L. Purcell, bailiff, got a gun off Myrtie Moore the night deceased died. Part of the hammer of the gun had been freshly broken off. Myrtie Moore stated to the jury, that when they went back to the poker room he was asked by Beeler Shumake to play his hand. He and
Counsel for the plaintiff in error states in his brief that there are three questions to be decided by this court. They are substantially: (1) Did the evidence demand a finding of justifiable homicide? (2) Did the court err in giving in charge to the jury the law concerning a conspiracy? (3) Did the court err in giving in charge the law in reference to dying declarations? We will discuss these questions in their respective order.
After a careful and thorough study of the brief of evidence, we entertain no hesitancy in holding that the evidence did not demand a finding that the killing was justifiable. The jury were amply authorized to find either a verdict of murder, or one of voluntary manslaughter arising out of a mutual intent to fight. Goodin v. State, 126 Ga. 560 (55 S. E. 503). We think an extended discussion of this question is unnecessary.
On the second question we have entertained some doubt. However, after an examination of many authorities, we are con
As shown by the statement of facts already set out, the State introduced several declarations of the deceased, after he was shot, as to who shot him. No objection was made to the introduction of these declarations. Complaint is made that the charge of the court to the jury on dying declarations was without evidence to support it. In Williams v. State, 139 Ga. 688 (77 S. E. 1062), it was said: “Where testimony relating to a dying declaration of the decedent [italics ours] is received in evidence, and no objection is made thereto, it is not error for the court to give in charge to the jury the legal principles applicable to dying declarations.” This ruling disposes of this question. The judge did not err in overruling the motion for new trial.
Judgment affirmed.