44 Ga. App. 746 | Ga. Ct. App. | 1932
The indictment in this case charges Aubrey Sikes and others with murdering Dennis Hubert by shooting him with a pistol. Sikes was tried separately and found guilty of voluntary manslaughter. His motion for a new trial contains the usual general grounds and one special ground.
The State’s evidence tends to show that the negro youth, Dennis Hubert, was killed in pursuance of a conspiracy.. There is no dispute that the defendant and others drove down to the play ground where Hubert was, and that one of the party shot and killed him. James Baggins testified : ““Mr. Martin asked Mr. Garvin: “Which one is it?’ And he says: “This one here,’ . . and Mr. Garvin began to beat him. Dennis says: “What is the meaning of this; I never did anything.’ Then Mr. Martin said: “Let me have it;’ and shot him. . . I told Mr. Allen three men come up to Hubert, and one I didn’t know. Garvin struck him, and
The only two questions presented for determination in this case are succinctly stated in the brief of counsel for the plaintiff in error to be: (1) .Is there any evidence in this record which authorizes a conviction of the offense of voluntary manslaughter? (2) Did the court err in failing to charge the law of circumstan
The State introduced the affidavit subscribed and sworn to by the defendant, after counsel for the movant had expressly stated that he had no objection to it.
We shall preface our conclusion as to the first question propounded by counsel by the following statement from Wilson v. State, 9 Ga. App. 297 (2) (70 S. E. 1125) : “A jury is authorized to believe a part of the defendant’s statement, though the whole statement is not credible to them; and the same thing is true as to the testimony of each and every witness who appears before the jury.” In the ease at bar all the evidence was “State’s evidence.” It is true that the numerous witnesses sworn by the State made out a case of murder. However, the same is not necessarily true of the case made by the sworn affidavit of the defendant, made the day after the homicide. Of course, if the State’s evidence had made out only a case of murder, and the defendant had introduced evidence making only a case of complete justification, and there had been no middle ground, as in Hunnicutt v. State, 114 Ga. 448 (40 S. E. 243), and other cases cited by the plaintiff in error, there could have been no legal verdict of voluntary manslaughter. In our opinion a casual reading of the record in the case at bar suffices to show how widely its facts differentiate it from the line of cases indicated. We are well satisfied that the evidence in this case warrants the verdict.
To our minds the verdict is by no means dependent entirely . upon circumstantial evidence. The gist of the only special ground is that the State’s case depends upon proof of a conspiracy, and that proof of the conspiracy depends solely upon circumstantial evidence, and that, therefore, the court erred in failing to charge the law of circumstantial evidence even though there was no request that he do so. We hold that the contention is without merit.
Judgment affirmed.