Emmett v. StateEmmett v. State
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2. Acquiescence or silence, when the circumstances require an answer or denial or other conduct, may amount to an admission. When a statement tending to incriminate a person is made in his presence and he remains silent, the mere fact that he is under arrest or is in custody at the time will not render evidence of such statement and silence inadmissible as an implied admission, or make it improper to instruct the jury in reference to such evidence.
3. Where an accused was on trial for the offense of murder, and there was evidence tending to show that he killed the deceased in the commission of a robbery, and also that on the occasion in question he came to the home of the deceased in an automobile and left by the same conveyance, evidence that he later admitted stealing the automobile in a different county in this State tended to illustrate the defendant‘s state of mind at the time of the homicide, and to corroborate the other evidence tending to show robbery as the motive, and was not subject to objection on the grounds that it was irrelevant and prejudicial, and placed the defendant‘s character in issue.
4. The charge in regard to the defendant‘s right to make a statement, and the authority of the jury to believe it in preference to the sworn testimony, when considered in the light of other instructions given in the general charge, did not tend to minimize or disparage the statement, and was not erroneous, as contended.
5. The instruction to the effect that if the defendant and another person killed the deceased in the commission of a robbery, the killing would be murder, was authorized by the evidence, and was not subject to exception on the ground that it was unsupported.
6. Under the evidence, it was not error to refuse to give a requested instruction to the effect that if from the evidence or the defendant‘s statement the jury should believe that the defendant did not in fact intend to kill the deceased they would not be authorized to convict him of murder.
7. It is declared in the Code that drunkenness shall not be an excuse for any crime or misdemeanor unless it was occasioned by the fraud, artifice,
8. The physical evidence that was introduced was sufficiently identified, and was properly admitted over the objections urged.
9. The evidence authorized the verdict, and the court did not err in refusing a new trial.
Jesse Kalb and Thomas Emmett were jointly indicted for the offense of murder in the alleged killing of Guy McConnell in Hall County on January 29, 1942, by striking and beating him “with a certain shotgun and with a certain pistol, and with other weapons and instruments to the grand jurors unknown.” On separate trial Emmett was convicted of the offense charged, without recommendation, and was sentenced to be electrocuted. His motion for a new trial, containing the general grounds and fourteen special grounds, was overruled, and he excepted.
The evidence and the defendant‘s statement tended to show the following: Emmett left Atlanta in an automobile on January 28, intending, as he stated, to go to Gainesville to see his “father‘s people.” He soon “picked up” Kalb, a stranger, and invited Kalb to go with him. They drove by the home of Kalb‘s mother in Cobb County, and got $1.50 or $2.00. They then bought a pint of whisky, and proceeded on their journey. They got lost in Forsyth County, and stopped and spent the night on the roadside. A farmer in that county gave them breakfast on the morning of January 29; and while they were at his home they stated to him that they had been drinking the night before, and asked him where they could get some whisky. In reply, they were told to go across the river and stop at the first house and ask for Guy McConnell; that they could get some there. They proceeded to McConnell‘s home, and spent the greater part of the day with him or about his place. McConnell lived alone, and his home was in Hall County.
Cliff Jenkins, an employee of McConnell, testified that he and Loyd Wooten were at McConnell‘s place, hitching mules to a wagon for the purpose of going to Gainesville, at the time the defendants came; that they asked Wooten if he knew where “anybody could get them a drink,” and he “told them he didn‘t;” that they then
The evidence does not show clearly when or how McConnell left his home; but from questions to witnesses it seems to have been thought that he walked to the home of another person, and was then taken by some one to the hospital in Gainesville.
Winfred Jones testified that he went with Glenn McConnell to Guy‘s home on the afternoon in question, and that Guy was not at home when they got there: He further testified: “In the room where Mr. Guy slept we found a gun stock laying on the floor, split, and the barrel lying on the bed like somebody had laid it over there. That is the barrel and stock, and those blankets lying on the floor; we got eight pieces, and I guess in eighteen or fifteen inches was a heavy pool of blood. . . There was a heavy pool of blood on the floor about eighteen inches from them. I got this blanket out of the house; it was on the bed, and we went back later and got it. It was torn like it is now. When we brought in Thomas Emmett he had this pistol on him. He walked out of the woods; he was trying to catch a ride, and he walked into the road, and Hollis, a State patrolman, and I got him. I took possession of the gun and turned it over to the sheriff‘s office. It
Lee Lathem testified: “I arrested Mr. Kalb. I found him just off of the road about a half-mile beyond Brown‘s Bridge — I guess fifty feet out in the woods. He was hid when I found him. He was in a brush pile. I arrested him and brought him to town. It was just before dark when I found him. He was not asleep when I found him — just lying there kinda of on his back sorta of like this. I imagine it was about fifty steps from the road. He did not resist arrest at all. I came up behind him. He did not see me until I was done up on him. He did not try to run. He was pretty bad beaten up, pretty bloody, beaten up on the head. There was blood on his clothes. I could smell whisky. He told me about a fight he had with Emmett. I came up from the back. . . I seen him lying there in the brush pile, so I sneaked around to the back and come in. I did not know but what he was the one had the gun. I reached in and pulled him out. He had a knife — this knife right here, and I asked him what was the matter — what had happened, and he said Thomas Emmett had beaten him up. I asked him what he beat him up with, and he said a pistol. I asked him where Emmett was, and he said he had gone this way, which was across a hollow through the woods. . . Kalb said he was afraid Emmett
From other evidence, it appeared that both arrests were made in Forsyth County.
Dr. C. D. Whelchel testified: “Guy McConnell was admitted to the Downey Hospital on or about January 29th. . . The principal injury that I found was an injury to the right side of his head. It was a rather extensive scalp wound with a fractured skull. I made an x-ray of the fractured skull. . . Guy McConnell was in a very serious condition from the wounds. he was unconscious. I made an examination of him there when he was admitted. I was close enough to have smelled liquor on his breath, if he was intoxicated. I did not get any odor of whisky.”
Dr. Lee Rogers testified: “I first saw Guy McConnell the morning after he was beaten up. I saw him at Downey Hospital. I looked at him. I did not take any bandages off. I looked at the chart and felt of his pulse and looked at the x-ray of his head. He had a fractured skull and several lacerations where his scalp and face were beaten up. He had two fractures of the skull, as I remember, one around his eye and ear and one up on this side. Those wounds on his head evidently caused a hemorrhage in his brain. This blood from that hemorrhage was never absorbed. As to how long after I saw him at Downey Hospital before he was removed to the Hall County Hospital, I don‘t remember the date the accident happened; he was moved to the Hall County Hospital February 6th. From that time until he died he was under my care. I do not think he was ever rational. He would have lucid intervals. He could probably recognize me part of the time, but it was very infrequent. He couldn‘t carry on a conversation. He was living in the past all of the time. He would have lucid moments when he could recognize certain people. His x-ray revealed very clearly that his skull was fractured. In answering the question, `From what did he die?’ he had cerebral embolism — a clot from one of those vessels in the brain. That was produced from his skull. He died from the wounds inflicted on him on the occasion of his beating. That was the direct and proximate cause of his death. . . He died from a cerebral hemorrhage. He
McConnell lived about three and a half months after the wounds were inflicted, dying on May 14.
It appears that during the nights of January 29 and 30, being the first and second nights after he was injured, McConnell made certain statements tending to implicate “Emmett” and another “fellow.” The testimony regarding these statements, offered by the State as evidence of dying declarations, was admitted over objections of the defendant. For this evidence, see grounds 1, 4, and 5 of the amendment to the motion for new trial, as shown later in this statement.
Sheriff Bell testified as to statements made to him by the defendant Thomas Emmett, and by the defendant Kalb in Emmett‘s presence. According to the sheriff‘s testimony, the defendants both admitted that they had robbed and beaten McConnell on the
The court: Q. “You say Mr. Kalb was pretty badly beaten up also?” A. “He was, yes sir.” The court: Q. “Was there ever any contention by either Emmett or Kalb that any one had hit Kalb except Emmett?” A. “No, sir.”
On cross-examination, the sheriff testified, in part, as follows: “I don‘t know anything about Emmett and Kalb having a fight in Forsyth County, other than what they have told me. They told me they had been down at Guy McConnell‘s all day, drinking, all three of them. They said they came down there reasonably early that morning, and stayed all day. They did not say all drinking. I asked about Guy drinking. He said he was sick; and if he drank any, both of them said they did not know if he drank any. . . In my conversation with Thomas Emmett, when he made these statements to me that I have already testified about, he said he got that automobile they came up there in, in Atlanta. He did not say exactly what street he got it in, but he said he got it in Atlanta.
The defendant made the following statement to the court and jury: “Well, gentlemen, the way this thing came about, me and Kalb come up through Forsyth County and went over to Mr. Heard‘s house. We got lost in Forsyth County, and it was cold that night, and asked him about spending the night with him, and he said he had a sick boy, and we built a fire on the side of the road and spent the night. The next morning about daylight him and this boy come up where we was, and invited us out to the house to have breakfast, and we got to have breakfast, and he had some little chickens, and we got to talking, and he thought we had a load of liquor, and Kalb told him, no, we would like to buy a drink, we had been drinking the night before; and I kept on talking to him — and we kept on talking to him and talked to him about forty-five minutes or an hour, talking about the war; and Kalb asked Mr. Heard about where we could get some whisky did he know, and his son told this Kalb the first house after we crossed the river bridge, a man by the name of McConnell — a good barn to the left of the house, and we got some smoking tobacco, and our car was about torn up — it did not have a fan belt on it, and he told us, this man, it was seven and a half miles to the river, and we stopped at the house and went down to the barn where this fellow and boy were hooking up a pair of mules, and asked about whisky and told them Mr. Heard sent us over there; and the boy said he did not know, we could go up and see the man of the house; and all three of us walked to the house went was there, and we told him what we wanted and that I was coming to Gainesville to my father‘s people, and he sent this boy and he got a pint of whisky and come back, and the boy gave us the whisky, and him and this fellow Jenkins got in the wagon, and I did not see them any more that day. We sat around and talked and drank that pint of whisky, me and Kalb, and started to leave, and Mr. McConnell says there is no use to leave so early it was cold, and pulled out another bottle of liquor from the fireplace, and all three of us drank
Supplementary statement of the defendant: “I forgot to bring out something about the sheriff made a statement awhile ago, talking about me making a statement to him. If I told Sheriff
Sheriff Bell, recalled, testified as follows: “I heard the statement of the defendant, that he never did make any statement to me. He certainly did make a statement in my presence. I never heard anything about any crap shooting or rolling dice or anything until this morning. Emmett and Kalb both told me if Guy McConnell drank any liquor with either one they did not know it. That was yesterday evening. Kalb said he took a drink. But back he told us — Kalb on several occasions and Emmett on two or three occasions, and I explained to Emmett that I was an officer; and in making this statement he was not offered anything, and I told as near as I possibly could what he said. My son was present when he made a statement in the presence of Kalb. I for A. W. Jr., and A. W. Jr. was present when he made this full conversation about how it was. He made it very plain to me that when he demanded of him (McConnell) that he wanted his money, he (McConnell) handed it to him, and I asked him what it was in, and he said it was in a small sugar sack. At that time he never said anything about winning it in a crap game. I never heard of the crap game until to-day.”
The court: “You mean you never heard of the crap game until you heard the statement of Mr. Emmett?” A. “I heard rumors around — all the boys at the jail — that there might be some crap game came into it. Emmett and Kalb both always made the statement that Guy did not make any effort to hurt either one of them, and Emmett made the statement he whacked him, Guy McConnell — whacked him over the head with the butt of the pistol. When I was talking to Emmett, he did not just answer questions. He made a statement. He sent for us and wanted to make a statement, and he told us freely. Of course, some things about it,
In grounds 1, 4, and 5 of the amendment to the motion for new trial, the movant complained of the admission of testimony of R. G. (Glenn) McConnell, R. G. McConnell Jr., and Sheriff A. W. Bell, as to statements made by the deceased and offered by the State as dying declarations. Each of these witnesses testified regarding a statement made by the deceased at the hospital on the night of January 29, a few hours after he was injured; and R. G. McConnell Jr. testified regarding a second statement made to him alone on the following night. The evidence as to each statement was objected to on the grounds, that it did not appear that the deceased was in the article of death and conscious of his condition; that the statement was too remote from the event of death, and the deceased did not give the defendant‘s full name, Thomas Emmett, or otherwise sufficiently identify him. In each of these grounds the evidence is set forth in question and answer form, but it will be quoted here from the narrative form as it appears in the brief of evidence.
R. G. McConnell testified as follows, regarding the statement that he heard: “As to the statement he made to me and the sheriff when me and the sheriff and my boy were there; of course we had been asking all night who killed him and who hit him, and at this time he said that Emmett did it, and he repeated that to the sheriff when we called him down there. He said, `They did it.’ He called the name of one of them. With reference to the other fellow, I don‘t think he called his name. He just said Emmett and the other fellow. I don‘t think he called his name. He just said Emmett and the other fellow, or something like that. He didn‘t say that night what they hit him with, I don‘t believe. He didn‘t say that night where it happened. Guy lived in Hall County.” As to the condition of the deceased and the circumstances under which the statement was made, the witness testified as follows: “I saw my brother, Guy McConnell, on or about January 29, that night. He was at Downey Hospital. When I saw him he was beat up, his head was beaten into a pulp, almost; gashes in his head; his eyes were, I believe, one of them was out
The court: “You asked the witness [deceased?] if he realized his condition. What did you mean by that, Mr. McConnell, what did he say about his condition?” A. “Well, when we asked him about that, he kind of jumped and looked like he was surprised or something, frightened.” The court: “What, if anything, did he say about his condition, about whether he was going to get well or die?” A. “Well, he did not say, but he seemed to realize at the time — you could tell from the way he acted, and then he did say he realized his condition. The sheriff asked him if he realized his condition, that he was in bad shape; and he said `yes.’ That was Thursday night about twelve-thirty.”
It was after the introduction of this evidence as to condition of deceased and other circumstances that the court admitted the evidence first above quoted, as to declarations of the deceased. Subsequently,
The court: “Was he rational or irrational that Sunday?” A. “He was irrational.”
R. G. McConnell Jr. described the deceased‘s wounds, and further testified: “It was in the early afternoon that I first saw him. It was about eight o‘clock that night when I returned to the hospital to see him. I remained there at the hospital. He remained in an unconscious condition until about — it was about twelve o‘clock that night; and I kept talking to him from about eight off and on until about twelve, trying to get him to come to. He was unconscious, other than just moaning, until about twelve o‘clock. There was somebody else in the room when he regained consciousness. When he first spoke, my father was there, and the nurse was in the room. Then the nurse left the room, and I suggested to call the sheriff to take in the statement. He began talking some, and we realized he was coming to. The sheriff came. He regained consciousness while me and my father and Sheriff Bell
A. W. Bell testified: “I am the sheriff of Hall County. Around midnight, a little after midnight on the night of [January 29], I saw Guy McConnell. . . They called me a little after midnight. . . When I got there Guy McConnell spoke to me and I spoke to him, and he knew me, and in the course of our conversation he appeared to be rational for some few minutes. He knew who I was. He called me by name. He could detect me by my voice. His eyes and mouth were swollen. One eye was swollen much more than the other, all discolored and all where you could not have recognized him if you had not known him. After he called me by name and recognized my voice, I asked him then did he realize his condition, and he said he did. The words as I remember he said, `I am killed,’ or `nearly killed.‘”
The court: “Said what?” A. “That he was killed. He says, `I am killed,’ or something to that effect — nearly dead or nearly killed — I would not say which. At any rate he was in his room then on the hospital bed. As to what statement he then made, the
Other grounds of the motion for a new trial are stated in the opinion, infra. 1. The grounds of the motion for a new trial as designated by numericals in this opinion will refer to the grounds as they appear in the amendment of the motion, but they will be considered in a somewhat different order.
In grounds 1, 4, and 5 the movant complained of the admission of testimony of R. G. (Glenn) McConnell, R. G. McConnell Jr., and Sheriff A. W. Bell, as to statements made by the deceased and offered by the State as dying declarations. All of these witnesses testified regarding a statement made by the deceased at the hospital on the night of January 29, a few hours after he was injured
Where the foundation for such a declaration has been prime facie established, the evidence is properly admitted, and the ultimate determination as to whether the person making it was in articulo
Should the declarations here have been excluded, as being too remote from the event of death, which did not occur until about three and a half months later? If a declaration is made while the declarant is in extremis as result of an injury, and while he is under a sense of impending death, without hope of recovery, and his death follows as a result of such injury, the fact that death does not immediately follow the declaration will not render evidence of it inadmissible as a matter of law; although if the interval is long, this fact may be some evidence that the declarant had not despaired of recovery. Parks v. State, 105 Ga. 242 (31 S.E. 580); Davis v. State, 120 Ga. 843 (3) (48 S.E. 305); Mattox v. U.S., 146 U.S. 140, 151 (13 Sup. Ct. 50, 36 L. ed. 917); 26 Am. Jur. 439, § 408. Despair may exist and be sufficiently proved, although life may have continued longer than was expected. Shepard v. United States, 290 U.S. 96 (54 Sup. Ct. 22, 78 L. ed. 196); State v. Byrd, 41 Mont. 585 (111 P. 407, 414); 13 Words Phrases, 749. “The actual period of survival after making the declaration is not controlling. The question does not depend upon the length of time between the declaration and the death of the declarant, but upon the declarant‘s mind at the time of the declaration, and his belief that he is in a dying condition.” Johnson v. State, 169 Ga. 814 (3b) (152 S.E. 76). In that case it appeared that the declarant lived about two months after making the declaration. In Miles v. State, 182 Ga. 75 (185 S.E. 286), the period was thirty-three or thirty-four days. Compare Harper v. State, 129 Ga. 770 (3), 774 (59 S.E. 792), where it was said that “The test is not so much the contiguity between the making of the statement and the death of the declarant, as whether they were made in articulo mortis, and when he was conscious of his condition.” In State v. Craine, 120 N.C. 601 (27 S.E. 72), it was held that a lapse of five months before death would not render the declaration inadmissible.
The present case is distinguished by its facts from Howard v. State, 144 Ga. 169 (86 S.E. 540), where, in reply to a question as to whether he was going to die, the declarant said he was, “if they did not do something for him,” and made other statements of similar import. We also consider the instant case as being materially
The foregoing deals sufficiently with the objections that were made, although the argument of counsel has taken a somewhat wider range. Henslee v. Harper, 148 Ga. 621 (97 S.E. 667). There is no merit in grounds 1, 4, and 5.
2. In ground 2 the defendant complained of the following charge: “It is contended by the State that certain statements were made by Mr. Kalb, a joint defendant, in the presence of the accused, Mr. Emmett, that is the defendant on trial, and it is the contention of the State that those statements were made by Mr. Kalb under such circumstances as would require Mr. Emmett to deny the statements as made. Now the court doesn‘t say any statements were made; the court doesn‘t say that any denial was not forthcoming, but that is one of the contentions of the State, and you must determine this case not from the contentions but by the evidence and the statement made by the accused. But I charge you in that connection, gentlemen, this principle of law: It is insisted by the State in this case that certain statements were made in the presence and hearing of the defendant, Mr. Emmett, as to who committed the offense and how it was committed, and that he failed to make any answer or any denial under conditions that required an answer or denial by him. Now on that I charge you that acquiescence or silence, when the circumstances require an answer or a denial or other conduct, may amount to an admission by the defendant. It is for you to say whether or not these statements or such statements were made in the presence and hearing
The movant quoted in this ground certain testimony of the sheriff which he insisted was the only evidence that could be claimed as basis for such instruction, and then assigned the charge as error upon the ground that it appeared without conflict that at the time of the “incident” to which the sheriff referred the movant was in jail, charged with the offense of assault upon the person of Guy McConnell, who had not then died, and was in the presence of the sheriff and solicitor-general, who had endeavored to elicit information in reference to such assault. The movant contended that in these circumstances he had the right to remain silent without his silence being construed as an implied admission, and that the foregoing instruction had the effect of compelling him to be a witness against himself “simply by remaining silent,” contrary to the
It is declared by the Code that “Acquiescence or silence, when the circumstances require an answer or denial or other conduct, may amount to an admission.”
Counsel for the plaintiff in error rely on Johnson v. State, 151 Ga. 21 (105 S.E. 603), for the proposition that such evidence would be without probative value and inadmissible. While the question was discussed at some length in that case, and the decision contained several broad statements tending to support the contention here urged, the final ruling was that “under such circumstances an implication that silence on the part of the accused amounts to positive evidence of guilt is unwarranted,” and that the evidence as a whole was insufficient to support the verdict of guilty. Only three Justices concurred in the opinion as written, one merely concurring in the judgment and two dissenting on the ground that the evidence was sufficient to support the verdict. In McCormick v. State, 176 Ga. 21 (1) (166 S.E. 762), similar evidence was admitted over the objection, among others, that at the time of the statement the defendant was confined in the common jail, and was in the presence of the prosecuting attorney and deputy sheriff, with “nobody present to look after his interests.’ It was held by this court that the judge “did not err in admitting this evidence over the objections presented, none of which show any legal reason why the evidence was inadmissible.” In our opinion, the mere fact that the accused is under arrest or in custody would not render such evidence inadmissible, or make it improper to instruct the jury in reference thereto, although in so doing the judge should be careful to inform the jury that they are to determine whether under all the circumstances an answer or denial was required. Hammond v. State, 156 Ga. 880 (120 S.E. 539). The charge complained of in ground 2 conformed to this view, and was not erroneous as contended. Compare Cobb v. State, 27 Ga. 648 (4), 698; Franklin v. State, 69 Ga. 36 (2, 3); Smiley v. State, 156 Ga. 60 (118 S.E. 713); Simmons v. State, 181 Ga. 761 (5) (184 S.E. 291); Elliott v. State, 190 Ga. 803 (5) (10 S.E.2d 843). This ruling will also control ground 3, complaining of the admission of testimony. The evidence was not inadmissible for any reason stated in the objection.
3. In ground 3 the defendant assigned error upon the ruling of the judge admitting the following testimony of A. W. Bell, sheriff of Hall County: “In my conversation with Thomas Emmett when he made these statements to me that I have already testified about, he said he got the automobile they came up there in, in Atlanta. He did not say exactly what street he got it on, but he said he got it in Atlanta. He said he stole it. The automobile was carried to Forsyth County and from there delivered back to the owner.”
This evidence was objected to on the grounds that it was irrelevant and prejudicial, and tended to place the defendant‘s character in issue. The court overruled the objection, and instructed the jury to consider the evidence only as it might illustrate motive, intent, or conduct.
If the testimony had related merely to the theft of an automobile, its admissibility might be doubtful; but since it concerned the particular automobile that the defendant had in his possession at the time of the homicide, we have no hesitancy in holding that it was admissible for the purpose stated by the judge. If the defendant did in fact steal the particular automobile as stated, the offense was repeated in Hall County, and even on McConnell‘s premises, on the very day and occasion of the homicide. To this extent, at least, the offense was a continuing one, and evidence of it would tend to illustrate the defendant‘s state of mind at the time, and to show a motive for the killing.
The general rule is that the character of the parties, and especially their conduct in other transactions, are irrelevant matter, unless the nature of the action involves such character and renders necessary or proper the investigation of such conduct.
It appears in this case that McConnell was mortally wounded in his own home, and apparently by strangers. There were no eye-witnesses, and inquiry would naturally lead to a consideration of the circumstances. Was the killing murder, or were there circumstances of mitigation or justification? While proof of a particular motive is not essential to establish the crime of murder, it is always relevant and admissible as a circumstance. Hunter v. State, 188 Ga. 215, 217 (2) (3 S.E.2d 729).
The evidence to which objection was made tended to show a present state of mind inclined to theft or larceny; and since it thus corroborated the other evidence on the issue as to motive, the objections urged were not well taken. Hill v. State, 161 Ga. 188 (2) (129 S.E. 647); Green v. State, 172 Ga. 635 (3) (158 S.E. 285); Suber v. State, 176 Ga. 525 (168 S.E. 585); Black v. State, 187 Ga. 136, 137 (3) (199 S.E. 810).
4. The judge charged the jury as follows, in reference to the defendant‘s statement: “The defendant, Thomas Emmett, has made to the court and jury, as he had a right to do, a statement. His statement, under the law of this State, is not made under oath; he is not subject to cross-examination except by his own consent; yet you as a jury have a right to believe his statement in whole, believe it in part, and to believe it in preference to any or all of the sworn testimony if you see proper to do so. In other words, gentlemen, you as the jury have a right to believe the unsworn statement of the defendant in preference to any of the sworn testimony in this case, if you see proper to give it that weight and that place and that importance in the trial of this case.”
In ground 11, the defendant assigned error upon the last sentence of the foregoing excerpt, on the grounds: (a) It was not sound as a matter of law, and was an incorrect statement of the law; (b) the jury had the right to believe the statement of movant in preference to the sworn testimony, and it was their duty to accept
The movant states the correct criterion by which the jury should appraise a defendant‘s statement; and it is true also that the defendant in a criminal case is entitled as a matter of law to have his statement considered and weighed by the jury without any disparagement by the court. The jury may believe the statement in preference to the sworn testimony, if they find that it is true, and there is no other standard.
The judge elsewhere instructed the jury that the object of all legal investigations is discovery of the truth, and charged them as to reasonable doubt, whether arising from the evidence or the defendant‘s statement, and as to their duty, in case of conflict, “to believe that witness or those witnesses or the defendant‘s statement, whichever in your opinion is most worthy of belief,” this being “a matter entirely for the jury to determine.” When the excerpt complained of is considered with the entire charge, it clearly made truth the criterion, and the only criterion, as to whether the jury might believe the defendant‘s statement in preference to the sworn testimony. While the last sentence may have been superfluous, it did not withdraw or qualify the other instructions, but left the jury free to accept or reject the statement according to their opinion as to its truth, and was not erroneous as contended. See, in this connection, Hendricks v. State, 73 Ga. 577; Walker v. State, 120 Ga. 491 (48 S.E. 184); Field v. State, 126 Ga. 571 (4) (55 S.E. 502); Delk v. State, 135 Ga. 312 (2)
5. In ground 12 the movant assigned error on the following charge: “If you find from the evidence beyond a reasonable doubt that these defendants, or this defendant together with another party not on trial, were committing robbery on Mr. Guy McConnell, which is a felony under the law of this State, and if in the commission of such robbery, or in their effort to commit the robbery, a mortal blow was inflicted upon Mr. McConnell and he died from that, then I charge you, gentlemen of the jury, that that would be murder under the laws of this State.”
This charge was criticised upon the ground that it was based upon stated evidence of the sheriff as to confession of a robbery by movant and his codefendant, and was erroneous and prejudicial, because there was no corroboration of the alleged confession, and no evidence authorizing submission of such an issue to the jury. There is no merit in this exception. See Gore v. State, 162 Ga. 267 (134 S.E. 36); Simpson v. State, 168 Ga. 598 (148 S.E. 511); Simmons v. State, 181 Ga. 761 (184 S.E. 291); Jenkins v. State, 190 Ga. 556 (9 S.E.2d 909).
6. In ground 10 the movant complained of the refusal of the judge to charge the following, as requested: “If from the evidence or from the defendant‘s statement you should believe that the defendant did not in fact intend to kill the said Guy McConnell, then you would not be authorized to convict for the offense or murder.” The court did not err in refusing to charge as thus requested. To have done so would have ignored the principle that if an involuntary killing should happen in the commission of an unlawful act which in its consequences naturally tends to destroy the life of a human being, the offense shall be adjudged to be murder; and would also have read out of the case the evidence which tended to show that McConnell was killed in the commission of a robbery upon his person.
7. In ground 6 the defendant complained that the judged erred in charging the jury on the subject of drunkenness, when the jury after deliberating for some time informed the court that further instruction was desired. The motion contained the following statement as to what occurred at this time: The court: “Mr. Foreman and gentlemen of the jury, you say you want to be reinstructed — want some further instruction?” Foreman: “Yes, sir.” The court: “What is the point you want instruction about?” Foreman: “We would like to know if the condition of the deceased or of the defendants or their reputation, whether they were drunk or sober would have any bearing on our verdict?” The court. “All right. Gentlemen, I charge you that if you find from the evidence that the defendant, Mr. Emmett, was intoxicated and that intoxication was produced by his own voluntary act, that it would be no justification to him if during his intoxicated condition which was a voluntary act on his part — that would be no defense if he unlawfully while in that condition took the life of the deceased. I charge you that if the deceased himself was intoxicated, that is, if Mr. McConnell was intoxicated, or, if he was drinking, that that of itself would give the defendant no right unlawfully to take his life. Now does that cover the point you had in mind?” Foreman: “I think it does.” The court: “All right, you may retire.”
This was the only charge that was given in response to request for further instruction. The jury retired to their room, and in about five minutes returned the verdict finding the defendant guilty, without a recommendation. It was contended that the jury could have found from the evidence that the defendant was intoxicated at the time of the killing, and that all of the persons involved had been drinking intoxicating liquors; and it was insisted that in these circumstances the recharge was erroneous and prejudicial, for the following reasons: (a) It was not sound as a proposition of law; (b) it did not embrace the principle that drunkenness like any other fact might be considered by the jury to illustrate the question of intent and motive in the commission of an act and to shed light upon the transaction, and therefore it was not a complete statement of law on the question involved. The
It is declared in the Code that drunkenness shall not be an excuse for any crime or misdemeanor, unless it was occasioned by the fraud, artifice, or contrivance of another person for the purpose of having a crime perpetrated.
8. In grounds 7 and 14 the movant complained of a ruling admitting in evidence certain articles of personalty, to the introduction of which the defendant objected on the ground that they had not been sufficiently identified, and on other grounds. There was no merit in any of the objections urged, and the court did not err in admitting the evidence.
9. The evidence authorized the verdict, and the court did not err in refusing a new trial.
Judgment affirmed. All the Justices concur.