162 Ga. 777 | Ga. | 1926
Lead Opinion
1. The plaintiff in error was tried for the offense of murder, it being alleged in the indictment that he killed J. Walter Johnson on December 16, 1924, by shooting him with a pistol.- The defendant was found guilty, without recommendation. He made a motion for a new trial, which was overruled. He excepted upon various grounds hereinafter stated. Without recapitulation of the evidence, which has been carefully considered, it can not be held that the evidence in behalf of the prosecution is insufficient to authorize the conviction of the accused; though there was testimony in behalf of the defendant which, if credible to the jury, would have sustained his plea of self-defense and would have authorized the jury to acquit him. So it can not be held that the judge erred in overruling the three general grounds of the motion for a new trial, unless it appears from the remaining assignments of error that'the verdict of guilty was induced by errors in the trial, as alleged in the special
2. In the second and fifteenth special grounds of the motion the plaintiff in error insists that the court erred in admitting the .evidence of William Branan and Mrs. Gregory, as set forth in said grounds, for the reason that this evidence was immaterial, irrelevant, and prejudicial to the defendant, and tended to show a separate and distinct transaction or crime for which the defendant was not then on trial. It is argued that the testimony of William Branan (second ground) and Mrs. Gregory (fifteenth ground) to the effect that after the defendant shot the deceased he backed
3. In the third special ground of the motion the plaintiff in error-complains because the court, on motion of the solicitor-general, excluded the testimony of J. L.- Robinson, a witness for the defendant, who had testified: “I had several conversations with Johnson. I had a eonversataion with him about a money-matter. He told me he made away with right smart of Swain’s money, and not to say anything to him about it.” It is insisted that this evidence was admissible for the purpose of explaining “the mind, motive, and attitude of Johnson, the deceased, towards Swain, the defendant, and it was for the jury to say what the deceased meant when he-told the witness that ‘he made away with right smart .of .Swainls- money and not to say anything to him about it.’ ” Plaintiff in error insists, that, “in view of the thread that ran through
4. In the fourth ground of the motion for a new trial the plaintiff in error complains that Miss Virginia Fowler was permitted to testify: “Mr. Johnson was a very special friend of mine. Prior to the homicide he had been going with me constantly. At the time he was killed I was going to school at Lanier High School. He used to go to school nearly every morning with me, and in the afternoon he would meet me on Spring Street if he was late, and if he was early he would go to Mrs. Gregory’s and stay until I came. The Gregory’s back door goes into our back door; the lots back together. He frequently waited for me at the Gregory home, except on Saturdays and Sundays, when he would come to my house. It cut off about two blocks for me to go by the Gregory home. We had been engaged to be married about three months. We used to live in the house with Mrs. Swain. She was an intimate friend of mine. Mr. Johnson did not show Mrs. Swain any attention at all Mr. Johnson and I were to be married the next day after he was killed; we were going to Bolingbroke, and R. E. Gregory was going with us. My parents did not want me to marry right then, but they said we could afterwards. This marriage license, dated December 9, 1924, and signed C. M. Wiley, ordinary, is the license Mr. Johnson bought and gave me under which we were to be married.” The objection to, this testimony was based on the ground that “the same is immaterial, irrelevant, and prejudicial to. the rights of the accused,” and it is contended that the court should have “sustained the objection and ruled the testimony out of the consideration of the jury.” It appears from the record that in admitting the testimony .the court ruled as follows: “The only question is whether or not it is competent and
5. In the sixth ground of the motion the plaintiff in error insists that the court erred in admitting the certificate of the United States War Department of the army service record of J. A. Swain. It seems to us that this certificate was immaterial and irrelevant, but after careful consideration we are of the opinion that the error in its admission was harmless. The marriage license of Miss Virginia Fowler was properly admissible, because the defendant had introduced evidence tending to show undue intimacy between Johnson and the defendant’s wife, and the circumstance that the defendant’s wife was extremely intimate with Miss Fowler and knew of her approaching marriage to the deceased might have some probative value as a circumstance explanatory of the conduct of the deceased and his frequent visits to the home of the defendant’s wife as a place of rendezvous with his fiancee.
6. The seventh ground of the motion is as follows:
“Movant charges the following reasons why the verdict and sentence should be set aside and a new trial granted: Because, after the State and defendant had closed the evidence and the defendant had made his statement to the court and jury, the solicitor-general, Chas. H. Garrett, in open court and in the presence of the jury, publicly announced to the court that he would like for the jury to go to the scene of the homicide, so that the jury might make inspection and view the premises of the alleged homicide. The court, addressing movant’s counsel publicly and in the presence of the jury, then asked defendant’s counsel if he had any objection; whereupon counsel for the defendant then and there stated that he had no objection if the same circumstances
“Movant insists that said error on the part of the court was very harmful to defendant; and furthermore the jury, by their acts and conduct as set forth above, were creating or using or viewing evidence against the defendant, and not in his presence, nor that of his counsel, because the court had ordered that no one accompany the jury except the officers of the court, meaning the sheriff and his deputies.” Movant insists that on account of the errors above set forth he has been denied his constitutional right of being present at every stage of his trial; further, that the above was in violation of art. 1, sec. 1, par. 5, of the constitution of Georgia, which provides that “Every person charged with an offense against the laws of this State shall be confronted with the .witnesses testifying against him;” and also art. 1, see. 1, par. 3, o-f the constitution of Georgia, which declares that “No person shall be deprived of life, liberty, or property, except by due process of
This ground of the motion is qualified by the following note of the court: “With reference to the action of the court' in permitting the jury to visit the scene of the homicide, the following are the true facts: Upon the conclusion of the evidence in the case the court recessed for supper, and reconvened about 7:30 p. m., for argument. Immediately after reconvening, the solicitor-
In the hearing upon the motion for a new trial, upon a counter-
7. In the eighth ground 'of the motion it is assigned as error that the court charged the jury: “The killing in this case would be murder if the jury should find that it was [for] the purpose of avenging some past wrong; the law being that a man has no right to take the law in his own hands and avenge a past wrong by killing a person that he thinks guilty of such wrong, whether it be a real wrong or a fancied wrong, and that would be true regardless of the nature of the wrong, however heinous the wrong may be.” There are two grounds of exception to the charge: first, that by using the language quoted the court intimated and expressed an opinion upon the evidence, in violation of section 1058 of the Penal Code of 1910; and second, because the charge was not authorized by the evidence. It is clear that there is no merit in the first ground of exception, unless it be in the use of the words “killing in this ease;” and this statement was not erroneous, because the fact that there was a killing was admitted (Johnson v. State, 30 Ga. 426 (5)), and the use of the words “by killing a person that he thinks guilty of such wrong, whether it be a real wrong or a fancied wrong” is not subject to exception. The second exception can not be sustained, because the defendant had introduced evidence indicating the probability of undue intimacy between his wife and the deceased.
8. In the ninth ground of the motion the plaintiff in error complains that the judge charged: “I charge you upon that subject that intermittent insanity caused by physical weakness or nervous disorder does not render a person of unsound mind, or lacking in discretion, unless at the time of the commission of the act he was incapable of knowing it was wrong, or right, and incapable of knowing the consequences of his act.” It is assigned as error' that there was no evidence to authorize such a charge, and that the law in the abstract was not properly given to the jury. We are of the opinion that the excerpt from the charge
9. In the tenth ground of the motion it is assigned as error that the court charged the jury: “To render one incapable of crime he must at the time of the commission of the act charged against him have been in such a mental condition as that he did not know the act done or committed by him was wrong.” The exception to this instruction is that “this is not the law and did not apply in this case, as there was no evidence to authorize it. The court having given the above in charge, hé should have explained further to the jury the law of delusional insanity, in which instance, had the defendant killed the deceased while being overpowered by such delusion caused by a diseased mind, then the general test of knowing the distinction between right and wrong would not apply; which said error in said charge as above quoted movant insists that the same is error and inured to his hurt and serious damage, and therefore the defendant assigns the same as error.” If there had been evidence in this case tending to show that the defendant was influenced at the time of the homicide by any delusion which overpowered his will, the exception would be well taken. Flanagan v. State, 103 Ga. 619, 627 (30 S. E. 550). But there is no evidence in the record that the mind of the defendant was enfeebled by disease, or that can be construed as showing that the defendant entertained any delusion at the time the fatal shot was fired.
10. In the eleventh ground of the motion the plaintiff in error contends that the court confused the law of voluntary manslaughter with the law of justifiable homicide as embodied in sections 70 and 71 of the Penal Code, as well as with the law of self-defense as embodied in section 73 of the Penal Code, by charging the jury: “That, gentlemen, is the distinction, in the language of the law, between murder and voluntary manslaughter. The
11. The thirteenth and fourteenth grounds of the amended motion were qualified by the following note of the trial judge: “After the evidence in chief by the State had been introduced, and the evidence in chief by the defendant and the defendant’s statement, the State proceeded to introduce considerable rebuttal evidence. In connection with this rebuttal, the State tendered Dr. Y. A. Little as a witness. The defendant’s counsel objected to Dr. Little testifying, and based his objection on the ground, stated in open court, that Dr. Little was an expert on insanity, and that he was not pleading insanity for the defendant nor relying upon the law of insanity. State’s counsel called attention of the court to the fact that defendant in his statement had claimed that his mind became a blank after he saw the deceased make certain hostile demonstrations, and that he did not clearly remember anything that transpired after that for several hours; and specially that the defendant disclaimed in his statement the ability to recall what transpired in a conversation, which had been testified to, between him and officers Branan and Stevens in the .presence of the solicitor-general, at the jail on the night of the homicide, and sometime after the State’s evidence showed the homicide had been committed. The State’s counsel then stated that he.proposed to prove by Dr. Little that no such amnesia, as. that claimed by the defendant, was possible in view of an ex-
IS. The seventeenth, eighteenth, nineteenth, twentieth, twenty-first, and twenty-second grounds of the motion for a new trial assign error in each instance upon the refusal of the court to grant a new trial upon the ground of newly discovered evidence. As well stated by counsel for the plaintiff in error in the brief: “We recognize the rule to be that the courts are loath to grant new trials on newly discovered evidence,” and a new trial will not be granted upon this ground where the newly discovered evidence is merely cumulative or impeaching. Pretermitting consideration of the point raised by State’s counsel, that the names of the associates of the alleged newly discovered witnesses are not given, so as to enable the State to prepare a counter-showing, as ruled in Ivey v. State, 154 Ga. 63 (6) (113 S. E. 175), a very careful and painstaking review of the testimony introduced in the trial has convinced us that we can not say that the trial judge erred in holding that the proof as to the whereabouts of the deceased during the day and afternoon of the homicide (even if
13. In the twenty-fourth ground of the motion the plaintiff in error complains that the court erred in giving the following charge to the jury: “If the evidence shows to a reasonable and moral certainty that the defendant slew the deceased with the weapon and in the manner described in the indictment, and if the evidence does not show there was any excuse or mitigation for the homicide and does not authorize any reasonable doubt upon this subject, malice would be presumed, and the burden would be on the accused to show a justification, or at least raise a reasonable doubt as to whether such killing is justifiable.” It is insisted that this charge placed a greater burden upon the defendant than imposed bj1- law; “that whenever the accused admits the homicide, but at the same time states circumstances of justification, mitigation, or alleviation, and the testimony of the witnesses for the defendant establishes like circumstances, it is error for the court to charge as above set forth. Said charge is further assigned as error, because, as movant contends, under the facts of this case, if the evidence is believed, the evidence which showed that the defendant committed the homicide also showed that he was justified in doing so. Therefore the burden was never shifted in this case, and said charge was erroneous because not applicable to the proven facts, and placed a burden upon the 'defendant which under the law he was not required to carry.” The above instruction is a correct statement of the law, and is not subject to the exceptions urged against it. It did not shut out from the jury the consideration of any of the evidence introduced tending to show an excuse or mitigation for the homicide, because the judge expressly referred to these. It placed no burden upon the defendant, unless the jury disbelieved the testimony in behalf of the defendant which could be construed as showing justification or mitigation.
Judgment affirmed.
Concurrence Opinion
I concur in the result reached in this case, but do not agree with all that is said in the sixth division of the opinion.