164 Ga. 509 | Ga. | 1927
Lead Opinion
L. B. Little shot and killed J. G. Herrin on June 24, 1926. The shooting took place in the City of Madison, Morgan County, at a location specifically referred to as Thompson’s garage. The grand jury of Morgan County returned an indictment charging the accused with the offense of murder; and upon the trial the jury returned a verdict of guilty, without a recommendation. The defendant made a motion for new trial, which was overruled, and he excepted.
Counsel for the defendant, on cross-examination, propounded to George Shaw, a witness called for the State, the following question: “Mr. Little [the defendant] has been an arresting officer here for a great many years?” To which the witness answered, “Yes.” And then the following question was propounded: “Accustomed to carry a gun?” Objection was made by the solicitor-general that the witness should not be permitted to answer this question, on the ground that it sought to elicit irrelevant testimony, and the court sustained the objection. We are of the opinion that the witness should have been permitted to answer the question. Ordinarily, evidence of what the accused had done on other occasions not connected with the crime alleged against him and for which he is on trial is not admissible; but in this case evidence was introduced to show premeditation and malice on the part of the accused. There is evidence tending to show that the accused sought the decéased, came to where he was and deliberately made an attack upon him, striking him several blows with his fist, then went to his automobile, took from it his pistol and shot and killed the deceased under circumstances that made the killing murder, according to the theory of the State. The evidence of his carrying his pistol with him in his automobile would tend to establish the contention that the killing was done with malice aforethought and that the crime was a premeditated one. But if the accused was accustomed to carry his pistol, the fact that he had it with him on the occasion of the homicide would be less weighty as evidence to show that he had premeditated the alleged crime and had committed it deliberately. If the accused had been on trial for the carrying of a pistol contrary to the law, and he had denied having a pistol with him on the occasion in question, the fact that he carried it customarily, or had been seen carrying it on other occasions, could not be proved by the State, aqd evidence
The ruling made in the second headnote requires no elaboration.
In another ground of the motion for a new trial error is assigned upon the court’s failure to charge the law of voluntary manslaughter as contained in §§ 64 and 65 of the Penal Code, though no written request for such a charge had been made. Upon a consideration of the evidence we are of the opinion that the law of voluntary, manslaughter was involved under the evidence, and that the court should have charged the jury upon that subject. An eye-witness, W. F. Vaughan, called for the State, thus describes the encounter between the accused and the deceased and the killing of the latter: “When Mr. Little arrived he walked up to Mr. Herrin and said, ‘Have you seen Dr. Tunison?’ Mr. Herrin replied, ‘I have not, Mr. Little,’ and about that time Mr. Little said, ‘You mean to continue to work my negro, do you?’ and just about the time he said ‘do you?’ he hit him right up there side of the neck. I imagine he hit him three times before we got them separated. The first two licks he hit him when Herrin was sitting down. After he made the first two licks it seemed to me Mr. Herrin was stunned and made an effort to get up at the second lick, and about the third lick they both had locked together. I imagine he might be six feet and a half tall. The defendant weighs, in my opinion, around 180 and is about six feet tall, I imagine, and a half. He hit him with his fist, I guess. I didn’t see any instrument. Mr. Emmett Alford, Herbert Perkins, and myself separated the two. After we separated them nothing was said by one to the other no more than Mr. Little — I had hold to him and he seemed to think at the time that we were holding him, and he cursed and said, ‘Turn me loose,’ — just that way. At the time he made that statement Mr. Herrin was, I imagine, around four feet below from wher,e I and Mr. Little was. When Mr. Emmett Alford — after we pulled them loose, just about the time we separated them, Mr. Little said; ‘God damn it, turn me loose,’ — just that way. I had hold to Mr. Little. Mr. Alford had hold to
E. L. Alford, called as a witness for the State, testified in part: “Mr. Herrin was squatting at the time he first hit him. I couldn’t tell how many times he hit him while he was squatting; they clinched about that time, about the time of the first lick. Mr.. Yaughan and I tried to separate them; we caught hold of them. We succeeded in separating them after Mr. Perkins came to our rescue. I didn’t see any more of Mr. Little right at this time. Mr. Herrin stepped back towards the door of the garage and pulled his pistol. I don’t know whether Mr. Little was moving towards him at the time he stepped back; I didn’t see Mr. Little. I don’t know what Mr. Little did when Mr. Herrin pulled his pistol-out. After Mr. Herrin pulled his pistol out I made him put it up. He didn’t do anything with it, just pulled it out; and I told him to put it back in his scabbard. After the blows had been struck Mr. Herrin seemed in a dazed condition, I don’t know just exactly, he didn’t look like he was at himself. He seemed to be in that dazed condition at the time he pulled the pistol. He made no effort whatever to use his pistol.” And on cross-examination the same witness testified, in part, as follows: “Little did not turn immediately and go towards his automobile after we got them separated. After Mr. Herrin went into the building he did. Hp to that time Little hadn’t shown a gun of any kind or a weapon of any kind. He didn’t have one that I know of. The first I saw of it was when he went to his automobile. . . When I told Mr. Herrin, We are not going to have any of this here,’ I thought they were going to begin shooting, thought Mr. Herrin was. I did not grab his gun, never put my hand on it. I took hold of him and
George Shaw, a witness for the State, testified in part as follows: “The first thing the defendant did when.he reached this building was to ask Mr. Herrin if he had seen Mr. Tunison. He told him, ‘You will work my negro, will you?’ and hit him. I couldn’t say how many times he hit him. I know he hit him twice. He hit him in the head. I think the.blows were pretty heavy. Herrin had made no threatening move towards the defendant-before he was hit. After he hit him they. grappled and tussled, and two or three of the boys got in and separated them. After they separated them the defendant Little started back towards Mr. Herrin, and Mr. Herrin drew his gun. He made no effort to use the gun; they got him to put it back in his holster. When Herrin pulled his gun out and had it beside him, the defendant Little reached as if he was going to draw'his gun; he reached toward his hip-pocket. After Herrin was told to put his gun up he put it up and started back in the garage. He did not say anything else. Little did not say anything that I heard. He walked to his car.” And on cross-examination Shaw testified, in part: “Mr. Herrin pulled his gun twice, first on the outside, and they made him put it up, and after he got on the inside he pulled it again. I was looking right at him when he pulled it. He deliberately reached and got the gun and pulled it out. He put it down to his side. He made as if to raise it, but never did raise it. Little was continuing to fire at him. That is what caused him not to raise it any higher. I guess Little had the drop on him.”
Herbert Perkins, called as a witness for the State, testified, in part: “When the defendant came up to where Mr. Herrin was, he asked him if he had seen Mr. Tunison, and Mr. Herrin said, no, he had not seen him. The defendant then asked him if he was going to keep working his negro. Then he hit him. Mr. Herrin made no reply to that question. He hit him with his fist beside the head twice that I know of. Mr. Herrin was squatting down in front of me at the time he hit him. After he hit him Mr. Herrin got up and they were fighting. Then we separated them. They were about five or six feet apart after we separated them. He started to move towards Mr. Herrin after they were separated. Mr. Herrin pulled his gun out when the defendant started towards him. When he pulled his pistol out he pulled it down by
This is only a part of the evidence of the witnesses referred to above, and it by no means presents a complete picture of what occurred ; nor is it intended to bring out fully the case as shown by all of the evidence for the State; for we have quoted only that part of the testimony from which it seems that it would be a question for the jury to say whether or not there was mutual combat, and if there was mutual combat, whether the law of voluntary manslaughter as related to mutual combat was involved; and also as to whether the law of voluntary manslaughter contained in sections 64 and 65 of the Penal Code was involved.
Error is assigned upon the following charge of the court: “And under the laws of the State of Georgia, if the State has convinced your minds by the evidence in this case that on or about the 24th day of June in the year 1926 the defendant in this ease, in the County of Morgan, with a certain pistol did inflict a wound upon the person of John G. Herrin, and if the State has further convinced your minds by the evidence in this case beyond a reasonable doubt that John G. Herrin afterwards died as a direct result of that wound, that is, that the defendant with a certain pistol killed John G. Herrin, as charged in that bill of indictment, why then, upon proof of those facts by the State, the law would presume, until the contrary is shown, that the killing was malicious, that is, with malice; and unless the evidence in behalf of the State in this case convinces your minds that it was a justifiable killing, why then, upon proof by the'State that the defendant did kill John G. Herrin, if he did kill him, unless the evidence in behalf of the State shows justification, then it would devolve upon the defendant in this case to satisfy your minds that the killing was justifiable.” This charge is excepted to upon the ground that the jury is there instructed that “upon proof of the killing the presumption of malice would arise, unless the evidence in behalf of the State convinced their minds that it was a justifiable killing;” while the true rule is, that upon the proof of the killing the presumption of malice arises, and the burden rests upon the defendant, unless the evidence adduced against him shows either justification or mitigation. In other words, it is not the true rule that the burden is placed upon
The court gave the following charge to the jury in the course of his instructions, and this is excepted to: “Now, there has been something said by counsel in the argument as to the employment of a certain negro that was in the employment of the defendant in this case by Mr. John G. Herrin. I charge you that even if John G. Herrin — and I do not pretend to' say that he did or did not — but even if John G. Herrin employed a certain negro that was in the employment of the defendant in this case, that fact alone would not justify the defendant in attacking John G. Herrin, if he did attack him, and that fact alone would not justify the defendant in shooting John G. Herrin, if he did shoot him.” Hnder the facts of the ease, this charge was not error.
The ruling made in the seventh headnote requires no elaboration, and the facts relating to those grounds need not be more fully stated.
Judgment reversed.
Dissenting Opinion
dissenting. In the opinion a new trial is granted upon four grounds. The first is, that the court erred in refusing to permit a witness for the State, upon the cross-examination, upon objection of counsel for the State, to answer the question whether the accused was accustomed to carry a gun. The second is, that the court erred in failing to charge the law of voluntary manslaughter, embraced in sections 64 and 65 of the Penal Code. The third is, that the court erred in instructing the jury that if
1. Did the court err in the first of these rulings? It is true that when a homicide is committed with a deadly weapon, and the slayer is indicted for murder, it is competent for him to prove that he came by the weapon for an innocent purpose on the occasion. Aaron v. State, 31 Ga. 167. If the possession of a weapon by the slayer when the homicide is committed, and the circumstances under which the slayer came by the weapon, do not appear, he can introduce evidence to show that he had the deadly weapon for an innocent and not for an evil purpose. When, however, the circumstances attending the commission of the homicide all appear, and they show how and for what purpose the slayer procured the weapon, the mere fact that he was in the habit of carrying the deadly weapon woiild be irrelevant. In the instant case it appeared from the evidence that the defendant was a man over six feet tall and weighing 180 pounds; that he struck the deceased while he was squatting down, and without provocation. They then grappled. At that time the defendant was unarmed. Bystanders separated them; then the defendant went to his automobile, got his pistol, turned and immediately began to shoot at the deceased, his last shot proving fatal. Here we have undisputed proof of the manner in which the defendant obtained possession of his pistol, and the purpose for which he got it. In these circumstances it was wholly immaterial whether or not he was in the habit of carrying a deadly weapon. So I do not think that the trial judge erred in this ruling. Even if this evidence had been admissible, its probative force is so slight that a new trial should not be granted in a clear case of an unprovoked and brutal murder.
2. Did the court err in failing to give in charge the principles of law applicable to voluntary manslaughter, as set out in sec
In all cases of voluntary manslaughter, there must be some actual assault upon the person killing, or an attempt by the person killed to commit a serious personal injury on the person killing, or other equivalent circumstances to justify the excitement of passion, and to exclude all idea of deliberation or malice, either express or implied. Under the evidence there was no actual assault by the deceased upon the defendant.! It is true that evidence of such an assault may be found in a mutual intent to fight, and in the fact of an approach by the decedent to the defendant in furtherance of this design, where it was not necessary for him to do so in self-defense. Ray v. State, 15 Ga. 223; Buchanan v. State, 153 Ga. 866, 870 (113 S. E. 87). There was no attempt by the deceased to commit a serious personal injury on the defendant. There were no other equivalent circumstances to justify the excitement of passion, and to exclude all idea of deliberation or malice, either express or implied. The defendant unjustifiably attacked the deceased, by striking him with his fist. When struck, the deceased was squatting down, and the defendant was standing up over him. The deceased, as we have seen, was a man over six feet tall and
Was there any evidence of a mutual intention to fight? After the defendant struck the deceased, and they grappled, they were separated by bystanders. After this separation the deceased drew his pistol. He held it by his side. He did not point it at the defendant. He made no effort to use it in'any way. Evidently he drew it for the purpose of defending himself against any further attack from the defendant. He said nothing that indicated that he intended to use it, or intended to fight. The bystanders told him to put up his pistol, which he did. There is some difference in the testimony for the State as to the manner in-which he put the pistol up. Some of the witnesses testified that when told to put it up the deceased himself put the pistol in its holster. One of the witnesses for the State testified that he pushed the pistol into the holster. The bystanders shoved the deceased into the hallway of the' garage. The defendant demanded that the bystanders who held him, after the parties were separated, should turn him loose. He pulled loose, went immediately to his automobile, without looking back to see what the deceased was doing, got his pistol, whirled around and immediately began to shoot at the deceased. He shot a number of times. The deceased was retreating down the hallway of the garage when the defendant began to shoot. It is true that the deceased, after the defendant began to shoot at him, drew his pistol: It is inferable that it was his intention to use it in his defense against the murderous assault of the defendant, but for some reason he did not. The deceased did not
The defendant does not say in his statement that he shot under the excitement of passion. The evidence for the State makes a clear case of wilful and unprovoked murder. The statement of the accused tends to show that he, acted in self-defense. In these circumstances the court did not err in failing to charge upon the subject of voluntary manslaughter, as embraced in sections 64 and 65 of the Penal Code. Wilder v. State, 148 Ga. 270 (96 S. E. 325) ; Lamar v. State, 153 Ga. 216 (2) (111 S. E. 914). Nor was the law of voluntary manslaughter, as relating to mutual combat, involved under the evidence, as there was nothing in the evidence tending to show any mutual combat on the part of the deceased, all of his acts in the rencounter resulting in his death being purely defensive. If voluntary manslaughter was involved undér the statement of the accused, it is admitted that his counsel made no request
3. The defendant complains of the court’s instruction to the jury set out in the fifth special ground of his motion for new trial. The court, in substance, instructed the jury that if the evidence for the State convinced them that on or about June 24, 1926, the defendant, in the County of Morgan, with a pistol, killed the deceased, as set out in the indictment, then upon such proof the law presumes, until the contrary is shown, that the killing was malicious, and that unless the evidence in behalf of the State convinced them that it was justifiable homicide, it would devolve upon the defendant in the case to satisfy them that the killing was justifiable. The defendant excepts to this charge upon the ground that the true law is, that upon proof of the killing the presumption of malice arises, and the burden rests upon the defendant to show justification or mitigation, unless the State’s evidence shows one or the other. In other words, the defendant contends that it is not the true law that the burden is placed upon him unless the State’s evidence shows full 'justification;, but that such burden would only rest upon him if the State’s evidence failed to show justification or mitigation. On the other hand, if either justification or mitigation appeared from the evidence introduced by the State, the burden would not be shifted, and it would not rest upon the defendant to rebut the presumption of malice.
The law presumes every homicide to be felonious, until the contrary appears from circumstances of alleviation, or of excuse, or of justification; and it is incumbent on a defendant charged with murder to make out such circumstances to the satisfaction of the jury, unless they arise out of the evidence' produced against him. Hudgins v. State, 2 Ga. 173, 188. Where the evidence relied upon by the State to establish - the fact of homicide discloses circumstances of mitigation or justification, such evidence does not raise a presumption of malice. If either mitigation or justification appears from the evidence -produced by the State, there is no presumption of malice. Dowdy v. State, 96 Ga. 653 (23 S. E. 827); Green
In the sixth ground-the plaintiff in error complains of the following charge to the jury: “There is another principle of law that is disconnected with the principle of law that I have already given you in charge; and these principles of law that I am giving you in charge, I am quoting them from the Penal Code of the State of Georgia of 1910. The law says a bare fear on the part of the defendant that John G. Herrin was intending to commit a felony upon his person would not be sufficient to justify the kill-
The court charged the law of self-defense, as laid down in section 70 of the Penal Code. He then defined the meaning of the term “felony,” as used in that section of the Code. Then followed the instruction complained of in the sixth ground of the motion for new trial. He did not charge the jury the law of self-defense as set out in section 73 of the Penal Code. It is now well settled that in a proper case, on the trial of one for murder, sections 70, 71, and 73 of the Penal Code may all three be given in charge, but instructions on the separate branches of the law of justifiable homicide should not be so given as to confuse the different defenses which may arise under these sections, and apparently limit, by the terms of section 73, the defenses provided by sections 70 and 71 of the Penal Code. Warrick v. State, 125 Ga. 133 (7) (supra); Pryer v. State, 128 Ga. 28 (supra); Franklin v. State, 146 Ga. 40 (90 S. E. 480); White v. State, 147 Ga. 377 (3) (94 S. E. 222); Surles v. State, 148 Ga. 537 (7) (supra); Shepherd v. State, 150 Ga. 799 (105 S. E. 485). To charge sections 70, 71, and 73 consecutively, and’ without instructions to the jury as to the applicability of the different aspects of the case, tends to confuse the defenses provided under these sections, and such confusion requires the grant of a new trial. But in the instant ease the court did not charge section 73 of the Penal Code. He did not charge sections 70, 71, and 73 consecutively. He charged section 71. After charging the principle of law laid down in section 70, he told the jury that “There is another principle of law that is disconnected with the principles of law that I have already given you in charge,” referring to the principles laid down in section 70. He then charged the principle of self-defense laid down in section 71. Then in connection with the principles of law of self-defense, embraced in sections 70 and 71 of the. Penal Code, he charged the jury as follows: “If a person kills another or claims to kill another in self-defense, the law says that the danger must be so urgent and pressing at that time, . . or it must appear that the danger was so urgent and pressing at the time by the circumstances that surrounded the person killing that it was necessary to kill the,other person to‘protect his person either from a real or apparent danger