162 Ga. 14 | Ga. | 1926
John Howell ivas indicted by the grand jury of Bibb County at the April term, 1925, of Bibb superior court, charged with the offense of murder by shooting Harry Green with a pistol, causing his death. Shortly after the indictment was returned the defendant filed a petition to Judge H. A. Mathews, .presiding in Bibb superior court, under § 964 of the Penal Code of 1910, asking fox a change of venue, and alleging that because of popular prejudice it would be impossible for him to secure a fair and impartial trial in Bibb County, and that there was grave danger of his suffering from mob violence if brought to trial in Bibb County, and particularly if he should be acquitted. After a hearing on this petition Judge Mathews granted an order changing the venue from Bibb to Houston County, and providing for the transmission of the papers, etc., and for the delivery of the prisoner to the new jurisdiction. A special term of Houston superior court was called for the purpose of trying the defendant, and he was put upon trial in Houston superior court, was found guilty by the jury without a recommendation, and was sentenced by the court to suffer the penalty of death by electrocution, as provided by law. A motion for new trial was filed by the defendant, which was overruled, and he excepted.
1. On the call of the case in this court the defendant in error suggested a diminution of the record, and filed a motion in this court asking that the clerk of Houston superior court be required to certify and send up as a part of the record in the case certain additional proceedings, and alleged substantially' the following facts: that the brief of the evidence in this case shows that the homicide was committed in Bibb County, Georgia; that the indictment in the case, a copy of which is in the record now before the court, shows that it was returned by the grand jury of Bibb County; that there is of record in the office of the clerk of Houston superior court a petition for change of venue, filed by the plaintiff in error in Bibb superior court, in which the plaintiff in error, under the Penal Code of 1910, § 964, prayed for a change of venue
The plaintiff in error filed objections to the petition, the substance of which is set out above, on the following grounds: that the proceedings enumerated in the petition of defendant in error are not a part of the record of the case now pending in this court; that the petition for change of venue was filed in Bibb superior court, to which an answer was filed by the State of Georgia through Charles H. Garrett, solicitor-general; that these pleadings made a separate and distinct issue of fact to be heard and determined by the judge of the superior court of Bibb County; that from such decision of the judge of the superior court of Bibb County appeal could have been had, aLthough in fact no such appeal was taken; that the record of the petition for change of venue, the answer thereto, and the order of the court thereon were court records of Bibb County, and the only way such records could have become a part of the record in this case was for a transcript of these pro
2. Grounds 1, 2, 3, 4, 5, 6, 7, 8, 9, 12, 17, and 45 of the motion for new trial relate to the same subject-matter, and are argued together by the plaintiff in error, and will be considered together. During the progress of the trial the State contended that Harry Green, the deceased, was a deputy sheriff seeking to arrest the defendant when he was killed. The defendant contended that Harry Green was not an officer at the time he attempted to arrest defendant; and when LaFayette Green, a witness for the
3. The 14th and 15th grounds of the motion for new trial complain because, in answer to the following question asked by the solicitor-general: “What statement, if any, have you heard the defendant make about what was going to happen the next time anybody tried to arrest him or tried to catch him?” the’witness was permitted to answer, over objection, “The defendant and myself were talking about it (his being arrested) one Saturday morning. I don’t know-how long it was before the shooting. It was not six months ago. I am not going to say exactly when it was, because I don’t know. I would not say it has been six months ago. John Howell said the next man that tried to catch him would not have an easy job.” The 15th ground complains because the court allowed a witness to testify to substantially the same thing as set out above. The grounds of objection were: (1) That such testimony would tend to put the defendant’s character in evidence by the State, which is not a legitimate matter of inquiry until the defendant has offered in evidence his good character. (2) Because the statement attributed to the defendant, that the next man who tried to catch him would not have an easy job, was irrelevant; and further, because it contained no threat against the deceased and no suggestion of any harm intended towards him, and could not have referred to him. We are of the opinion that the evidence is not subject to either of these objections. Evidence of threats made by a defendant against a class of persons to which the deceased belonged at the time of the homicide is admissible. Hnderhill on Crim. Ev. (3d ed.) 732, § 508; Wharton on Crim. Ev. (10th ed.) 1704, § 909; 6 Enc. Ev. 643. But it is argued that the deceased, at the time the threats were alleged to have been made, was not a member of the class referred to 'by the defendant. We think it can make no difference, if subsequently to making the threat against the class and prior to the homicide the deceased became a member of that class. The threat was not directed against" the deceased personally, but against any officer or a member of a class of persons who might undertake to arrest him. Evidence that is material and relevant, offered by the State in the prosecution of one for a violation of the criminal law, is admissible even
4. In ground 16 of the motion for new trial plaintiff in error complains because, during the progress of the trial, the trial judge did intimate and express an opinion in the presence and hearing of the jury as to what had been proved in the case and as to the weight to be given certain testimony. The circumstances under which said expression of opinion was alleged to have been made were as follows: “The undisputed evidence had shown that on the morning after the homicide there were several indentations on the rear of the Dodge car that the defendant was driving tire night before, and the defendant was contending that these were bullet marks made by the deceased’s pistol just before the killing, when the deceased was shooting at him from behind, and the State was contending that these bullet marks were not made by a person shooting from the rear, and hence were not made by the deceased when he was pursuing the defendant.” William Branan was on the stand as a witness in behalf of the State, and he testified as follows: “I saw a mark or dent on the Dodge car [referring to the car driven by the defendant when he was chased and shot at by the deceased]; that license tag No. 24330 up about the left-hand corner of the body on the back, the upper left-hand corner. It looked like a glance from a pistol ball, in that there were some little pieces of lead in the place, and I put my finger in there and there was something like mica in there that came off the board. It was a small place that looked like as if it was fired by a small bullet that struck the ear at some angle, because it glanced away. There was a little raised place in the body that knocked the paint off and made a dent, and in that dent was a little raised place in the body as large as the lead of that pencil, and you could feel and see it. If it was a bullet that struck that place it glanced away, and from the rise 'of the body the bullet came from the front or side of the car. The rear curtains of a Dodge car extend down over the body with a little flap an inch below where the back of the top of the car is fastened to the body of the car, and my opinion is that [if] bullet was fired from the rear it would have had to go through the bottom of the top to have made .the mark on the
The defendant moved to rule out of evidence all of the witness’s testimony, in the following language: “I move to rule out all of his evidence, because he has given only an opinion.” Whereupon in the presence and hearing of the jury the court ruled on said motion in this language: “He [referring to the witness Branan] is giving facts.” Movant contends that the court erred in making said statement in the hearing of the jury, because it was an expression of opinion by the court as'to what were the facts in the case, and for the further reason that it was extremely prejudicial to the defendant, and was tantamount to saying in the presence of the jury that the defendant’s contention that the bullet marks were put -there from the rear during the pursuit was untrue,
5. The court charged the jury as follows: “If John Howell shot Harry Green, there can be no justification for such shooting unless it should appear that at the time he shot Harry Green it .was necessary for him to shoot Green in order to protect himself from being either killed by Green or suffering what is known as a felonious assault at the hands of Green, or the circumstances must have been such as to justify him in believing that his life was in danger or that he was in danger of suffering a felonious assault at the hands of Green. There can be no justification for the killing of a human being except it be a real or apparent necessity, an apparent necessity which is sufficient to authorize a' reasonable man to believe that a necessity dqes exist. It may sometimes happen and does sometimes happen that a man is justified in shooting or killing another, acting under the fears of a reasonable man that his life is in danger, or that he is in danger of a felonious assault, when as a matter of fact there was no danger, but the circumstances authorized him to believe it; but, in a case of that sort, it must appear that the circumstances were such as to authorize him to haye fear for his life or for his safety from a felonious assault. A bare fear would not be sufficient. It must not be the fear of a cowardly man, or a man that is not reasonably courageous, but it must be the fear of a reasonable man, reasonably courageous.
“Now if you should decide in this case John Howell not only
“I charge you, gentlemen of the jury, in this case, that if at the time, or just preceding the time, that Green was shot, if you find he was shot and killed, that just preceding the time he was killed, the officer, or Green, the man who is claimed to be an officer in this case, and if he was an officer, and undertook to arrest the defendant, he had the right to arrest him, provided if at that
“Now in this case I charge you this, that there are two grades of unlawful homicide in Georgia — there are several grades — but there are two grades of homicide where one intentionally kills another. Where one intentionally kills another with malice, the killing is murder; where one unlawfully kills another without malice, then the killing, where it is intentional, would be voluntary manslaughter. Now I charge you, gentlemen of the jury, in this case, that if prior to the final meeting of Green and this defendant, if they did meet down in the swamp, Green had chased Mm through the City of Macon, following him in an automobile and shot at his automobile several times, shot at him, and the defendant understood he was being shot at by Green, this was an unjustifiable assault by Green. Green had no right under the law to shoot at this defendant under those circumstances; and if Green, or if in the jury’s opinion the shooting by Green at the car, if the car was shot at by Green, without any intention on the part of Green to shoot Howell, then you would consider the law of voluntary manslaughter in this case.”
In grounds 24 to 29 inclusive, and in grounds 32 to 38 and in ground 51, of the amended motion for a new trial, error is assigned on certain excerpts from the above-quoted charge. Without taking up these excerpts in detail, which are numerous, we will consider the assignments of error with reference to the entire charge on this branch of the ease. The exceptions to this charge are, among others, that it restricted the justification of the defendant in shooting the deceased to that defense of himself under a real or apparent necessity; whereas, under the law and facts, it is defendant’s contention that “the defendant was justified if he shot the deceased to prevent an illegal arrest of himself by the
In the light of the evidence in this case and of the law applicable thereto, we are of the opinion that the charge of the court quoted above is not subject to the criticisms of the plaintiff in error. An illegal arrest is a trespass, and under our law is a misdemeanor, and the taking of human life can not be justified in order to prevent a mere trespass. Monroe v. State, 5 Ga. 85 (4); Smalls v. State, 99 Ga. 25 (25 S. E. 614); Coleman v. State, 121 Ga. 594 (7, 8) (49 S. E. 716); Perdue v. State, 135 Ga. 277 (4), 284 (69 S. E. 184); Wall v. State, 153 Ga. 309, 323 (112 S. E. 142); 1 Bishop New Crim. Law, § 868; 2 R. C. L. 474, 475, § 32; 30 C. J. 78, § 257. In Norton v. State, 137 Ga. 842 (3) (74 S. E. 759), this court held that “The mere fact of unlawful arrest will not alone authorize the killing of the officer making it. But if, in the progress of the transaction, the officer is about to commit a felony upon the other party, or so acts and makes such a show of violence as to excite in the person sought to be arrested the fears of a reasonable man that a felony is about to be committed upon him, and such person acts under the influence of those fears and not in a spirit of revenge, he may protect himself, al
The Penal Code (1910), § 72, provides that “If after persuasion, remonstrance, or other gentle measures used, a forcible attack and invasion on the property or habitation of another can not be prevented, it shall be justifiable homicide to kill the person so forcibly attacking and invading the property or habitation of another; but it must appear that such killing was absolutely necessary to prevent such attack and invasion, and that a serious injury was intended, or might accrue to the person, property, or family of the person killing.” There is nothing, we think, in this case which malíes the section of the Penal Code just quoted applicable to the facts of this ease. There is nothing to indicate that the defendant, in killing the deceased, acted because he feared
6. Movant contends that the verdict in this case is contrary to law and without evidence to support it, and that the judgment should be reversed on the general grounds of the motion for new trial. It is insisted that while the defendant on the night of the killing was committing a misdemeanor, in that he had in his possession intoxicating liquors, the liquors were so covered up and concealed that the deceased could not ascertain the contents of the defendant’s ear as it passed him; that he thereupon gave chase to the defendant and attempted his arrest on the mere suspicion of the defendant’s guilt; that the deceased had no warrant for the arrest of the defendant; that the defendant in contemplation of law had committed no crime in his presence, and was not endeavoring to escape, but was driving quietly along the public high»way when the deceased began to pursue and shoot at him; that if the defendant was committing no crime in the presence of the deceased in contemplation of law, an arrest attempted by the deceased on mere suspicion was illegal, and if the defendant killed the deceased to prevent such illegal arrest he could be convicted of .no higher grade of homicide than voluntary manslaughter. The legal phase of this last question has been considered in the preceding division of this opinion, in which the rule of law in such cases is discussed and determined. It remains for us- to say whether the evidence, under the rules of law given by the court, was sufficient to authorize the verdict rendered. From a careful review of the evidence we are of the opinion that the evidence' for the State was ample to support the finding of the jury. The deféndant offered no evidence at all, but relied upon his statement! The evidence for the State, in substance, was that the deceased, Harry Green, had been sworn in as a deputy sheriff for Bibb County, and at the time of his death had been on duty for several days, acting as such officer, and was working as such under the directions of the sheriff and chief deputy sheriff of Bibb County. The defendant, John Howell, the evidence discloses, had been arrested
The witness Battle was with the defendant, and testified: “Mr. Howell cut off the motor. Mr. Green drove on the left of us and stopped, and went on getting out of his car, and he said, T am sorry, John, I have got to do it,’ and Mr. John says, 'Do what?’ and Mr. Green says, T have got to arrest you,’ and Mr. John shot him. When Mr. Green rolled up he says, 'I am sorry, John, I have go.t to do it,’ and Mr. John says, 'Do what?’ and Mr. Green says, T have got to arrest you,’ and Mr. Howell shot him that quick. When the first shot was made I run. I jumped out with the gun. Mr. Green, when he stopped, did not open the door of his car, but stepped out of his car. I didn’t see Mr. Green with a pistol or anything. That is all I heard them say. Mr. Howell shot once while I was there, and I heard some more shots after I got up the road. I didn’t see Mr. Green fall. No quicker than the shot fired I done hit the ground and was gone to running. I jumped out just as he shot, and come back up the road the way
L. J. Stevens, a deputy sheriff of Bibb County, testified: “I was on Oak street, just around the corner from John Howell’s store, when he was arrested. I talked with him shortly after that at the jail, and asked him of his whereabouts on the night of the killing. . . He - says, ‘Mr. Stevens, I am not going to tell you a lie.’ He says, ‘I went to Jones County and carried the negro with me, Robert Battle, and coming back Tubby [the deceased] was parked on the far end of the Spring street bridge, and he rode up and told me to drive to the sheriff’s office with the liquor, and
The judge did not err in refusing to grant a new trial.
Judgment affirmed.