18 S.E.2d 844 | Ga. | 1942
1. Where it was sought to impeach, as provided in the Code, §§ 38-1802, 38-1803, the sole witness for the defendant charged with murder, and no evidence of the good character of such witness was offered by the defendant, and the testimony of such witness, if believed, would likely have caused a verdict of acquittal or of a lesser offense than that found, and the evidence otherwise was by no means conclusive as to what grade of offense, if any, the defendant was guilty of, it was reversible error to state in the charge to the jury that where it is sought to impeach a witness, he may be sustained by proof of good character.
2. While the doctrine relating to the "fears of a reasonable man" as in connection with the defense of justifiable homicide is no part of the law of voluntary manslaughter and should not be given in charge as a part of it, whether in view of other provisions of the charge it was reversible error to charge as in the present case need not be decided, since a new trial must be granted on other grounds.
3. The court erred in overruling the motion for new trial, for the reason stated in the first headnote.
The case made out by the State showed substantially: that the defendant at the time of the killing was in his place of business, from which a door opened on to a sidewalk on one of the streets of the City of Fitzgerald, and that J. W. Pate came to this door and apparently sought to enter. Upon being told by Jones "not to come in," Pate said "Okay, Home Boy," pulled the screen door open and started to enter. Jones then took a shotgun (apparently near by) and shot Pate, who died instantly. While the evidence of the State beyond what is stated above was vague, there was some suggestion that there had been a previous difference between the two, and that Jones had told Pate if he came in the door he would kill him, to which the reply of "Okay, Home Boy," accompanied his effort to enter. The defendant offered as a witness Henry Graham, who testified that Pate had been in Jones's place of business the night before, making some trouble; that Jones had put him out after he refused to go; that the next morning Pate came back, demanding that Jones pay for his watch which he said had "got broke;" and Home Boy said he couldn't pay for it, and Pate left and went up town, and then came back for the second time that morning. "Then he started another time about fixing his watch, and Cleve says, `It looks like you are going to raise a fuss, and you stay out of my place of business,' but Pate said, `You have got to have my watch fixed,' and me and him came back up town." Then, according to this witness, on the third trip to Jones's place "he came back in there again and started in the door with his knife in his hand, and Home Boy shot him." The witness stated that the knife in Pate's hand was open. He further stated that Pate, while not "plum drunk" and being "able to walk, . . had had a drink; you could smell it." The defendant in his statement at the trial related certain trouble they had the night before, saying that because of Pate's fighting in his store he had put him out after a fracas; that he came back next day, and they had some quarrel, and he again put him out, after which Pate slung a brick through *451
the door; and a few minutes later "I looked out and I saw him sliding up side of the glass window, . . and he reached for the door, and I said to him, `Don't you come in . . take your hands out of your pocket,' . . and I got my gun and shot him." The State by way of rebuttal sought to disprove these contentions relied upon by the defense.
1. One of the grounds of the motion for new trial complains that the judge, in connection with his charge to the jury on the manner of impeaching a witness (Code, §§ 38-1802, 38-1803), erroneously charged that when a witness was "thus impeached" or "sought to be impeached," that is, in the present case, "by disproving the facts testified to by him or by proof of contradictory statements previously made by him of matters relevant to his testimony and to the case, . . he may be sustained by proof of general good character, the effect of the evidence to be determined by the jury." This charge had reference to a witness for the defendant. The State had sought to impeach him by proof of contradictory statements previously made by him as to relevant matters testified to by him, and by disproving facts to which he had testified. There was no evidence of any kind respecting the character of this witness. There was thus no basis upon which to predicate this portion of the charge, and it was error. Geer v. State,
(125 S.E. 76). In Hart v. State,
An error of this kind seems to us not unlike an instance where a judge in a criminal case charges the jury as to the right of a defendant to make a statement in his own behalf, although in fact the defendant has not taken advantage of such right. The rule to be applied when such an error is committed has been stated by Judge Powell in Carter v. State,
In the instant case the evidence was by no means conclusive as to the guilt of the accused of the grade of crime of which he was convicted; and since, if this witness whose possible impeachment was dealt with in the charge had been believed, a verdict more favorable to the defendant would most likely have resulted, we reach the conclusion that the error is cause for reversal. This conclusion is not altered by the fact that in his general charge the judge stated that it was within the province of the jury to determine what evidence in the case to believe.
2. Ground two of the amendment to the motion for new trial complains that the charge respecting voluntary manslaughter was erroneous. The particular claim of error is that the court in giving in charge the provisions of the Code, § 26-1007, after reciting the exact language of the section to the effect that provocation by words, threats, or menaces, etc., would not be sufficient to free the person killing from the crime of murder, then added the qualification, "unless under all the circumstances of the case, taken in connection with all the other acts of deceased, you believe they are sufficient to excite the fears of a reasonable man." This last quoted proviso was followed by the remaining language of this section, and represented the only departure from its exact terms. The burden of counsel's argument is that while its terms are favorable to the defendant, nevertheless it tended to deprive him of the defense of voluntary manslaughter, and to leave the jury to a choice between verdicts of acquittal or murder. It is further argued that this was not cured by subsequent provisions of the charge which gave the defendant full benefit of the right to acquittal under this provision of the Code, § 26-1012. It has been ruled that since this particular excuse or defense has no connection with the law of voluntary manslaughter, it when otherwise applicable should be separately dealt with; and this court has rejected claims of error based upon failure to give in charge this principle in connection with the charge on voluntary manslaughter. In Adkins
v. State, *455
Judgment reversed. All the Justices concur, except Duckworth,J., who dissents.