88 Ga. 47 | Ga. | 1891
Exercising this statutory right, Underwood on his trial for the killing of Sayre made a statement consisting in part of the following :
“ Mr. Sayre was still talking in his room. I walked on back out there on the verandah near the cistern or well, going through the dining-room, and asked Mr. Sayre to be quiet; that Duggar was all right, there was nothing the matter with him. And I told him : ‘Alexander, it is near time you were going to work. It is after three o’clock. Now go on to work. Everything is all right. Duggar seems to be quiet.’ He remarked to me: ‘ You God-damned son of a bitch, you are no friend to me either, and I will kill you.’ He made at me with a knife or something in his hand, and I told him : ‘Don’t do nothing like that.’ Mr. Sayre kept advancing, and then was when the work was done. I snatched my revolver just as quick as I could, and the firing was done in a second and under the excitement, fearing my own life was in danger. I thought I would be murdered there. I didn’t know I had fired two shots. I was under the impression it was one. He was advancing on me and it was done in half a second. . . It
There was no sworn evidence to confirm this statement, hut on the contrary the facts of the homicide, as testified to by the witnesses for the State, were wholly inconsistent with it. The court charged the jury upon murder and manslaughter, hut gave no instruction whatever upon justifiable homicide or the law of self-defence. Counsel for the accused, by a request made in writing at the proper time, called upon the court to charge the iury thus: “ If you believe that at the time of the killing, the deceased, Sayre, was making an unjustifiable assault upon the defendant with a 'deadly weapon, with the purpose of taking defendant’s life, that defendant’s conduct was solely in defence against said assault thus made, and was necessary in order to save his own life, and that under these circumstances and for this purpose he shot and killed the deceased, he would .not be guilty and you should so find.”
The denial of this request is the subject-matter of the 11th ground of the motion for a new trial. The court states in a note to this ground that it was his duty to charge the law of self-defence if warranted by the evidence, but he did not think it his duty to charge upon the statement of the defendant alone, unsupported by the evidence. It thus appears that the court was aware that counsel for the defendant desired to urge a substantivedefence based on the statement of his client, and ihc sole reason assigned by the court for declining the request was that it rested on the statement alone. This reason was not legally sufficient, testing it by the only decision of this court of which we are aware that applies directly to the question. In the case of Hayden v. The State, 69 Ga. 732, it was ruled by a full bench that: “ The statement of a prisoner is admissible by statute, to be weighed and passed upon by the jury, and they may believe it,
Until reversed or modified in the manner prescribed by section 217 of the code, the decision in Hayden v. The State is binding, not only on the superior courts, but on this court. It was the legal right of the accused to have the rule there laid down administered on the trial of his case, and however guilty he may be, we do not feel authorized to acquiesce in his conviction and in the infliction of capital punishment upon him, until he has been legally tried. As the law has been hitherto expounded, it is only where a proper and pertinent request is présented in due time and manner that the accused is entitled to have instructions submitted to the jury upon the matters of defence raised by his statement. In Downing v. The State, 66 Ga. 111, it was said: “ If counsel representing the defendant in a criminal case desire special instructions in reference to the statement of the prisoner, in addition to the general charge as to the effect to be given it, they should make proper re
Note.-In addition to the cases cited in the opinion, the following are the rulings of the court heretofore made touching the prisoner’s statement: 1. Practice. Prisoner’s counsel cannot ask questions. Brown v. The State, 58 Ga. 212. Court asking prisoner whether he meant to deny the testimony. Robinson v. The State, 82 Ga. 535. 2. What it may embrace. Prisoner making long and rambling statement, or desiring to state matters grossly irrelevant, may be restrained by the court. Loyd v. The State, 45 Ga. 58; Montross, 72 Ga. 261; Howard, 73 Ga. 83. But error to restrict to facts which would be admissible in evidence. Coxwell, 66 Ga. 309. 3. Evidence. Admissible to rebut statement by testimony. Holsenbake, 45 Ga. 44; Hanvey, 68 Ga. 612 (witness not under rule); Wilson, 80 Ga. 357; McKinne, 81 Ga. 165; King, 77 Ga. 734; Bone, 86 Ga. 108, 122 (witness heard statement); Porter, 86 Ga. 362 (proving abusive words not charged). But bad character of prisoner, and that witness would not believe him on oath, not admissible. Doyle, 77 Ga. 513. 4. Argument. Right of conclusion not lost by making statement. Farrow, 48 Ga. 30; Seyden, 78 Ga. 105. But evidence introduced in reply to rebuttal of statement loses conclusion. Downing, 66 Ga. 110. Counsel for accused ought not to confound statement with testimony. Brown, 60 Ga. 210. State’s counsel ought not to argue on omission to make statement. Robinson, 82 Ga. 535. 5. Failure to make statement, and effect. Error to tell jury they might consider such failure. Bird, 50 Ga. 585. Solicitor should not argue on such failure. Robinson, supra. Failure by accident, ignorance or neglect of counsel, not ground for new trial. Dyson, 72 Ga. 206; Hudson, 76 Ga. 727. 6. Charge of the court. Not error, in connection with the general charge, to call attention to statement’s not being evidence, or not being under oath, or that defendant is under no penalty to speak truth, and not subject to cross-examination without his consent. Ross, 59 Ga. 248; Malone, 66 Ga. 539; Wilson, 69 Ga. 224; Poppell, 71 Ga. 276; Hendricks, 73 Ga. 577; Klug, 77