176 Ga. 825 | Ga. | 1933
Gordon Miller and John Miller were jointly indicted for the murder of Eobert Owens, and were tried jointly. The jury returned a verdict of guilty against both, with a recommendation. They thereupon filed their motion for a new trial, which was overruled, and to that judgment they sued out a writ of error to this court.
1. Movants insist, and their counsel urge in their briefs, that the verdict was contrary to the evidence and that the evidence was not sufficient to authorize the verdict. But, after consideration of all the evidence offered by the State, we have reached the conclusion that the jury were authorized to return the verdict thus excepted to.
Dr. C. Y. Wood, a witness for the State, testified that he was a regular practicing physician and surgeon, and had been for thirty-four years; that he made an examination of the body of Eobert Owens the day after he was killed; that he “removed the top of his
Dr. J. W. Good, another physician, testified, in part: “I have been practicing medicine and surgery for a number of years. I have a hospital here in Cedartown. In my opinion, that blood-clot in the head was caused from a ruptured blood-vessel. The rupture of the blood-vessel was caused from a lick of some description; it couldn’t have been caused from any other cause. There was no appreciable sign of violence outside of the head. I don’t think anybody could have inflicted the wound I found with his fist; it would be impossible. The instrument or weapon used would be likely to produce death; it did produce death. The outer table of the skull is very strong, very thick, and especially at that point it is the second thickest part of the skull. . . After a party had been struck, it would have been possible for him to have gone a mile or two before the blood coagulated sufficiently in the head to cause paralysis and kill him; it might take place hours afterwards; it could.”
J. C. Paris, for the State, testified: “I have been an officer for some little time. I arrested Gordon Miller on Sunday after the body of Robert Owens was found over there close to his home. He was between his house and the Rome highway; he said he was coming from church. I told him what I wanted him for. He said they had not had any trouble. After I went by and got this girl, Lois Nichols, I asked her in his presence about the trouble, and she told how it was, and then he said they had some trouble, had a little fight. He said he hit him. He said he hit him in the head, I believe he said, side of the head or back of the head; he hit him anyway. That was after Miss Nichols faced him and told him they had had trouble. That was Sunday after the trouble happened Sat
Alice Miller, who was in company with Lois Nichols at the time Robert Owens was struck, was introduced as a witness for the defendant. Her testimony contradicted that of Lois Nichols in nearly all material particulars. Numerous witnesses were introduced who testified to the good character of the defendants for peaceableness. Certain witnesses testified that as they were driving along a road they saw a fight between persons. One of them identified one of the persons as Robert Owens, but there was no testimony showing that either of the defendants was there.
The defendant Gordon Miller made the following statement: “Well, on Saturday night we went to the partj, and I had a date with Lois Nichols to go with her to the party, and Alice wanted to go, and she went with me and John. Me and Alice and Lois went to the party together. I was with Lois, and when we started back I started with Lois, and John and Alice was behind, I don’t know exactly how far, and when we got up the road about half a mile there was somebody. I heard them walking behind us, and I thought it was them. He just run in between me and Lois and shoved one each way, and as he shoved I hit at him. I hit him somewhere in about the chest, and then Lois hollered, and I went to see about her, and I never saw this man no more. I don’t know where he went to; and then by that time John and Alice had caught up with us, and we went on together, me and Lois and John and Alice; they come on behind, and we turned on. We didn’t meet no cars. We met one just before we turned off, and when we got to the road me and Lois turned oil to go to her house, and I went with her there, and I left her up there and come on back down there, and Alice and John was waiting for me, and then we all went home and went
While the evidence of the principal eye-witness introduced by the State was contradicted by the testimony of Alice Miller, it was a question for the jury to determine whether Lois Nichols’ testimony was to be accepted or not. They evidently gave credence to her testimony, as they had a right to do; and that testimony, read in connection with the testimony of the two physicians who performed the autopsy on the body of the deceased, authorized the jury to find that the two defendants were following at some distance Lois Nichols, Alice Miller, and Eobert Owens, and came up behind Eobert Owens, and that one of them struck him a violent blow upon the head with such a weapon and with such violence as to break the inner table of the skull and cause an extravasation of blood, thereby forming a clot on the brain, which resulted in death; and the jury were authorized to find that this blow was struck without provocation, and that the killing was murder. The jury were also authorized to find, from the fact that the two defendants, Gordon Miller who was twenty-six years of age, and John Miller who was seventeen years of age, followed the deceased, and the two young women whom they saw accompanying him, for some distance, and then came up to them with the common purpose of making an assault upon the deceased. There was evidence indicating that Gordon Miller had been going with Lois Nichols for some time. Jealousy may have been his motive for making the assault which resulted in the homicide; and this court is of the opinion that the verdict is authorized by the evidence.
The omission of the court to give in charge to the jury the law on the subject of voluntary manslaughter, which is the basis of one of the special assignments of error, was not error. There is no evidence authorizing a charge upon that subject. If the statement made by Gordon Miller to the jury authorized a charge upon voluntary manslaughter, there was no request to give such instruction. Failure to charge upon a theory of the case presented only by the statement of the defendant is not ground for reversing a judgment refusing a new trial, where no timely request was presented for a charge on that subject.
Again, exception is taken to the following charge of the court: “The law of admissions applies where there is some evidence, or where the jury may find some evidence, of admissions or circumstances that tend to incriminate the defendant. In other words, any admission or inculpatory circumstance, if you find any admissions were made by the defendants, or either of them, as to any fact or facts illustrative of the guilt or innocence of the
The following charge of the court was excepted to: “If you find that one of the defendants, or both of them, had formed this conspiracy, and that they were both present, and one, with a weapon likely to produce death, inflicted a wound on the deceased in a manner and in a way and under circumstances that would naturally tend to kill, then malice would be presumed from the use of a weapon and the manner of its use.” .Of course the language in this charge, “If you find that one of the defendants, or both of them, had formed this conspiracy,” was not apt; but this inaptness could not have misled the jury. The jury could not have understood the court, in view of all the charge, to mean that one man could form a conspiracy by himself. Except for this inaptness or inaccuracy, the charge was a substantially correct statement.of the law.
Judgment affirmed.