Green v. State

Aug 18, 1922
No. 3089
Reporters:
, ,
Before:
Hines
Hines, J.

(After stating the foregoing facts.)

1. The defendant moved for a continuance or postponement of his case, on the ground of the absence of Dr. J. M. Bellflower, a practicing physician, who had been subpoenaed as a witness in his behalf, and by whom he expected to prove that his wife frequently had trouble at her menstrual period, that Dr. Bell-*133flower had attended her and prescribed for her on these occasions whisky as beneficial to her when she had such trouble, and had advised that whisky be kept on hand for her. The showing for a continuance complied with all the requirements of the law on this subject. The court overruled the .motion for a continuance, and this ruling is assigned as error. The only eye-witness to this tragedy testified, on . his direct examination, that he detected an odor of whisky on the defendant after getting into the buggy with the latter, just a short time before reaching the place of the hoincide; but this-witness also testified that the defendant did not appear to be intoxicated. But on the cross-examination of this witness it was brought out by counsel for the defendant that the latter had in his buggy at the scene of the homicide a bottle of whisky. In his statement the defendant told the jury that in the previous February his wife was sick with her menstrual trouble, and that the doctor advised that some whisky would be good for her. At that time he got some whisky from Tom Barfield for her. He further stated that on the day of the homicide he was looking for some whisky for his wife, and went to John Barfield’s again to get some, but found nobody at home. He thought that he might get some from J. J. Cravey, and went down there for that purpose, and there got the bottle of whisky which he had in the bottom of his buggy at the time and place of the homicide. It is urged by counsel for the defendant that it was competent. and important for the defendant to mitigate, if not excuse, the possession of this whisky by him at the time and place of this tragedy; and that the testimony of Dr. Bellflower would corroborate that part of his statement in which he told the jury that whisky had been prescribed by the family physician for his wife at times when she was suffering from menstrual trouble.

If the possession of whisky by the defendant at the time and place of this killing had been brought out by the State, this contention of the defendant would be stronger. The fact that he had whisky on this occasion was voluntarily brought out by his counsel on the cross-examination of the only eye-witness of this homicide, and in the defendant’s statement to the jury. It only appeared from the evidence of the State that this witness smelt the odor of whisky on the person of the defendant. The State *134did not show, and did not undertake to show, the possession of whisky by’ the defendant at the time and place of the commission of the crime for which the defendant was being tried. Under the liberal rule in this State, under which evidence of doubtful competency is admitted, the evidence of this doctor would be admissible to corroborate that part of the defendant’s statement in which he told the jury that he had been advised by this physician to furnish whisky to his wife on the occasions when she suffered from her menstruation. Does the refusal of the court to continue this case for the purpose of procuring the testimony of this physician require the grant of a new trial ? This situation of the case is no better than it would be if the witness had been present, and the court had illegally rejected this testimony.

The superior courts of this State may grant new trials where material evidence may be illegally admitted or illegally withheld from the jury against the demand of the applicant. Penal Code, § 1086. Under this section the grant of a new trial is not necessarily demanded by the rejection of competent evidence. When the rejected evidence relates to the main transaction, and tends to sustain the defense set up by the defendant, the rejection of such evidence would require the grant of a new trial; but when it relates to some collateral matter, and the evidence touching the main transaction makes a clear case of guilt, the rejection of evidence bearing on such collateral matter, although competent and relevant, does not in all cases require the grant of a new trial. So the refusal of the court to continue the case for the purpose of permitting the defendant to obtain the testimony of an absent witness on some collateral matter, which does not bear upon the main transaction, would not require the grant of a new trial, where the guilt of the accused is clearly and satisfactorily established. Where guilt is clearly established slight error in the exclusion of evidence does not require the grant of a new trial. Stephens v. Crawford, 1 Ga. 574 (44 Am. D. 680); Bird v. State, 14 Ga. 43 (4); Jordan v. Pollock, 14 Ga. 145; Hagar v. State, 71 Ga. 164, 167.

Even in the case of capital punishment a new trial will not be granted, though some relevant and competent evidence was excluded on the trial, if it be perfectly clear, beyond all doubt, that the conviction and punishment would be no less rightful with the *135excluded evidence in, than with it out. Beck v. State, 57 Ga. 351 (2); Brannon v. State, 21 Ga. App. 328 (94 S. E. 259). In Beck v. State, supra, this court said: “None of the excluded evidence bore directly on the main transaction; it did not relate to what took place on the occasion of the homicide. The whole strength of the case is, that, under the circumstances then and there existing, there was no good reason for killing the deceased — that the killing might have been let alone by the prisoner, and that he nevertheless committed the homicide. The evidence kept out would not have changed the real case one iota. There is no cause in the record for granting a new trial.”

The undisputed evidence in the present case makes out a clear case of murder. In the statement of the defendant alone is the killing justified. Would the verdict have been different if the absent physician had been present and had sworn that he had advised the defendant to furnish his wife with whisky when suffering from her menstruation? We do not think it would. If the evidence for the State is to be believed, and that was a matter for the jury, the State made out a ease, and the proof expected from the absent physician would furnish no ground for a different verdict. So while we think the evidence of this witness was competent and admissible, we do not think the refusal of the court to continue the case for the purpose of procuring this testimony furnishes a ground for the grant of a new trial.

*1363. It is urged that the- court erred in permitting a witness for the State to testify to a statement made by the deceased that *137the defendant “ sure did not have to shoot me.” This was offered by the State as a dying declaration, and the objections urged to its admission were that no foundation had been laid for its introduction, and that the same was a mere conclusion or opinion of the deceased. This statement was made on the day on which the deceased was shot. He was lying on the ground just as he had fallen. He seemed to be in misery. He was asked by one Boss, “ What caused this ? ” The witness testifying to this declaration then asked him, “ What caused this ? ” The deceased did not reply. Boss said to the witness who asked this question, that “ Mr. Green said he [the deceased] was coming on him [the defendant] with a knife, and he [the defendant] had to shoot him [the deceased].” The deceased then turned his head up a little to this witness, and made the above declaration. In a minute or two after the deceased made this statement those present were talking about moving him to the porch, and he said to them, “ Let me lay here and die.” He was apparently helpless. He asked another person present to get his pocket-book. Soon his wife came up and he said to her, “ Ma, get my pocket-book. I owe Uncle Jesse a hundred dollars, and I want to pay him that.” He then said to his wife, “ Did you get my papers ? ” and she said, “ Tes.” He said, “ Well, I want to see them.” She presented them to him, and he said, “ That is all right.” Those were the last words he spoke. He died at four o’clock a. m. the next morning from the pistol-shot wound inflicted on him by the defendant on the afternoon before.

*1352. The defendant likewise moved to continue or postpone his case for the purpose of obtaining the testimony of Dr. II. M. Moore, by whom the defendant expected to prove that he attended the deceased immediately after he was shot; that the shirt which the defendant wore at the time of the homicide at the point where the fatal bullet entered was burned out for a space of three inches, and the person of the deceased was scorched, this being caused by the shot which killed the deceased; and that in the opinion of this witness the muzzle of the pistol, when fired, was right against or in very close proximity to the body of the deceased. This evidence would have been competent and admissible, and would have tended to corroborate the statement of the defendant, and his narrative of the facts and circumstances attending the homicide. While this witness had not been subpoenaed, we are of the opinion that the defendant and his counsel exercised due *136diligence in their efforts to have him subpoenaed • and to secure his presence at the trial. The subpoena for this witness was issued in due time, was turned over to an officer for service, and the officer attempted to serve him in ample time before the trial, but on the morning when the officer endeavored to serve the subpoena the witness had left the State on a journey to New York. Neither the defendant nor his counsel knew of the intention of the witness to leave the State. Under these circumstances we think due diligence was shown in their effort to procure the attendance of this witness. We do not think, however, that the refusal of the court to continue or postpone the case to procure the testimony of this absent witness is such error, under the facts, as will require the grant of new trial. Dr. L. A. Baker, a witness for the State, testified that he saw the deceased on the evening of the day on which he was shot, that his shirt immediately around the wound had been on fire, that the place burned in his shirt might have been three or four inches around, and that the skin around this wound was burned, scorched, and discolored from the powder of the gunshot that inflicted this wound. .This physician also testified that from his experience in treating gunshot wounds the pistol was in very close proximity to the deceased’s body, not over three or four feet away. Dr. W. E. Tyson testified that he saw the deceased shortly after he .was shot, that his clothing had been on fire, that a small place had been burned out about two inches in diameter, and that his flesh near and around the wound was smoked and burned black. Thus the undisputed evidence introduced by the State on this subject was in substance the same as that which the defendant wished to prove by this absent witness. The defendant got the benefit of the evidence thus introduced by the State; and as it was undisputed, there was no necessity for the introduction of cumulative evidence on this point. Eor this reason there was no such error committed, if any, as will require a new trial, in refusing to continue or postpone the hearing in order for the defendant to procure a witness who would testify substantially as the witnesses for the State had done. Reich v. State, 63 Ga. 616 (3); Woods v. State, 137 Ga. 85 (3) (72 S. E. 908); Kent v. Central of Georgia Ry. Co., 144 Ga. 7 (85 S. E. 1017.)

*137To render dying declarations admissible, they must be made at a time when the declarant is in the article of death. Penal Code, § 1026. It is not sufficient to show that at the time the declarations were made the declarant may have believed he was going to die, if in fact he was not in articulo mortis. If the deceased was in fact in the article of death, and the circumstances indicated that he must have known it, it is proper to allow declarations to be proved, with instruction that the jury find whether made consciously in articulo mortis. Young v. State, 114 Ga. 849 (40 S. E. 1000). On the trial of a murder case, if at the time of making declarations the condition of the wounded person making them, the nature of his wounds, the length of time after making the declaration before he expired, and all the circumstances make a *138prima facie case that he was in the article of death, and conscious of his condition when he made the declarations, such declarations should be admitted in evidence by the court under proper instructions to the jury. Lyens v. State, 133 Ga. 587 (66 S. E. 792); Cason v. State, 134 Ga. 786 (68 S. E. 554); Perdue v. State; 135 Ga. 277 (69 S. E. 184); Barnett v. State, 136 Ga. 65 (70 S. E. 868); Jefferson v. State, 137 Ga. 382 (73 S. E. 499). The facts necessary to be shown before declarations are admissible as dying declarations may be proved by circumstances. Oliver v. State, 129 Ga. 777 (59 S. E. 900). The facts and circumstances were sufficient to make a prima facie case, and the court did not err in admitting this evidence, on the ground that no proper foundation had been laid.

This declaration was not a mere conclusion or opinion. Whether the defendant had to shoot the deceased was a question of fact. The admission of this testimony falls within the principle ruled in Darby v. State, 79 Ga. 63 (3 S. E. 663), wherein the declaration, “ He cut me, and I done nothing to cause it,” was let in; White v. State, 100 Ga. 659 (28 S. E. 423), wherein the statement “shot me like a dog” was admitted; McMillan v. State, 128 Ga. 25 (57 S. E. 309), where the statement “shot me for nothing without any cause” was admitted, and Washington v. State, 137 Ga. 218 (73 S. E. 512), where the declaration “shot me for nothing ” was admitted. The case at bar can not be differentiated from these cases.

4. In the sixth ground, complaint is made of the charge of the court on the subject of dying declarations; and the errors assigned are: (1) that there is no legal and sufficient evidence to warrant the same; and (2) that the alleged dying declaration on which this charge is based was a mere opinion or conclusion of the deceased, and not a statement of a fact. It follows from what is said in dealing with the admissibility of this evidence that there is no merit in the grounds of attack upon this charge. The evidence justified the giving of this charge, and we have undertaken to show that the dying declaration was not a mere conclusion or opinion.

5. The verdict is supported by the evidence, and is not contrary to law.

Judgment affirmed.

All the Justices concur, except Gilbert, J., absent.