Walker v. State

Dec 12, 1911
Reporters:
, ,
Before:
Evans
Evans, P. J.

Thе defendant was indicted for the murder of his wife, Alma “Walker. He was convicted, and sentenced to be hanged. The indictment contained two counts; the first charged that the defendant, after having thrown gasoline and other inflammable liquids upon her person and clothing, did set fire to her person; and the second count charged that he set fire to her clothing and person. The evidence was entirely circumstantial, and we think sufficient to authorize the verdict. It would be unprofitable to reproduce the essential features of the case as embodied in the voluminous record, and for that reason we will not attempt it.

1. The State offered evidence tending to show that the defendant had cruelly treated his wife. The defendant introduced certain letters purporting to have been written by his wife several months prior to her death and left with him not to be opened until after her death. Two of these letters were addressed to an unmarried sister of the decedent, and one to a young lady of the neighborhood; they referred most affectionately to the defendant, and each contained a request for the addressee to marry the defendant in the event of her death. The State submitted evidence tending to show that the letters were written by the defendant, and the defendant introduced evidenсe tending to prove that they were written by his wife. With reference to these letters the court charged that the defendant had offered them for the purpose of showing that no ill feeling existed between him and his wife, and that his treatment of her was kind and proper. The defendant complains that this instruction unduly limited the effect of the evidence, because the letters also tended to show a morbid disposition or unbalanced mind of the reputed writer, so as to raise an inference of self-destruction, or accidental death by careless act. While the court’s charge may have been somewhat restricted, yet, in view of the evidence in the record, we do not think the charge sufficient ground for a new trial.

2. In stating the State’s contention with reference to the authenticity of the letters, the court said that the State contended that the letters were written by the defendant, “and contends that there was a purpose in writing those letters, — that it fixes the *401crime as a сonspiracy arising under this bill of indictment charging the defendant with the death of Alma Walker.” The quoted language is objected to on the ground that no conspiracy was charged and none proved. It is clear from the context that the court did not use the word “conspiracy” in its technical sense, and it is equally clear that the jury could not have so understood. The trend of the charge, and the very next sentence, show that the court meant that it was the State’s contention that the letters were fabricated in pursuance of a plan of the defendant which indicated preparation and premeditation.

3. A witness, Classie Lightfoot, was permittеd to testify to declarations of the decedent, made while she was lying on the floor and her husband was pouring water on her smoking body, and within a few minutes after her clothing had become ignited, ‍‌​​​‌​​‌​‌‌​‌​​​‌‌‌‌‌‌‌‌‌​​‌‌​​‌‌​‌‌​‌​​‌​​​‌‌​‌‍to the effect that the defendant had intentionally set her on fire. It is insisted that the declarations were not spontaneous with the act аnd indicated deliberation on the part of the declarant, and were inadmissible as part of the res gestee.

It is impossible to frame a definition of the term res gestee which will adequately cover all the various and different uses to which it is put. As was said by Bleckley, J., in Cox v. State, 64 Ga. 410 (37 Am. R. 76): “The difficulty of formulating a description of the res gesta which will serve for all cases seems insurmountable. To make the attempt is something like trying to execute a portrait which shall enable the possessor to recognize every member of a very numerous family.” Our code defines it as declarations accompanying an act or so nearly connected therewith in time аs to be free from all suspicion of device or afterthought. Civil Code (1910), § 5766. “The res gesta of a transaction is what is done during the progress of it, or so nearly upon the actual occurrence as fairly to be treated as contemporaneous with it. No precise point of time can be fixed a priori where the res gesta ends. Each case turns on its own circumstances.” Hall v. State, 48 Ga. 608. The best guide to keep within the rule is furnished by the decided cases which serve as illustrations of its application. In Munday v. State, 32 Ga. 676 (79 Am. D. 314), a witness was attracted by the cries of the person assaulted. He went to where he was, and some one ran off. He asked the person assaulted what was the matter, to which *402he replied that the defendant was trying to choke him to death; and ‍‌​​​‌​​‌​‌‌​‌​​​‌‌‌‌‌‌‌‌‌​​‌‌​​‌‌​‌‌​‌​​‌​​​‌‌​‌‍this conversation was allowed in’ evidence as res geste. In Burns v. State, 61 Ga. 192, testimony of a witness who lived abont six hundred yards from the place of the assault, that the deceased came to his home about an hour before day, Sunday morning, bloody, and, when asked what was the matter with him, said, “You know I went to sleep on the chair and fell out on a piece of wood,” was held to be a part of the transaction and so nearly connected with it as to constitute a part of the res gestee. In Stevenson v. State, 69 Ga. 68, the witness’s testimony was that he heard the report of a gun and ’the scrеam of a woman about three hundred yards away; he ran immediately to her assistance, and when in speaking distance she cried out for help. He saw that she had been shot, was bleeding freely, could move nothing but her hands, and, whilst begging that something be done for her, she said that defendant had shot her. This occurred from three to five minutеs after the shooting. It was held to be admissible as a part of the res gestas. Where a wounded man, within five minutes from the time he was shot, asked one of the persons who was assisting him what he shot him for, this question was held to be a part of the res geste. Mitchell v. State, 71 Ga. 128. In Kirk v. State, 63 Ga. 621, evidence that immediately after the deceased was shot a person neаr by halloed and asked them what was the matter and who had shot him, to which he replied that the defendant had shot him, was admitted as a part of the res geste. Illustrations may be multiplied to show that declarations to be a part of the res geste need not be precisely concurrent in point of time, if they spring out of the transаction and are made so near to it as to preclude reasonably the idea of deliberation. Mitchum v. State, 11 Ga. 615; Herrington v. State, 130 Ga. 307 (60 S. E. 572).

When the testimony in question was offered, evidence had been submitted ‘tending to show that immediately after the clothes of the decedent became ignited the accused ran to a neighbor’s house about 175 yards distant ‘аnd told the young daughter of the neighbor that his wife was on fire; that about the same time the accused called a negro by the name of Frank Lightfoot, who lived about 75 or 100 yards from the neighbor’s, and exclaimed, “Alma [the’wife of the defendant] is on fire; run quick.” The *403accused returned to his home, closely followed by Frank and his wife. When Frank entеred the house he saw the decedent upon the floor, “screaming and halloeing;” her body was smoking, and the accused was pouring water upon her. Frank left at once for a neighbor, at the request of the accused. His wife, Classie, then came into the room. She testified that she found the decedent lying on tire floor, mоaning and screaming, and that the accused was pouring water upon her smoking body. Hpon entering the room the witness exclaimed, “My God, how did it happen?” The accused attempted to say something, but his wife “headed him off” and said, “He did it; he stuck fire to me; he did it; he did it on purpose.” Hpon the decedent’s reiteration of the stаtement the accused touched the witness and said, “ Classie, I don’t know no more about it than ‍‌​​​‌​​‌​‌‌​‌​​​‌‌‌‌‌‌‌‌‌​​‌‌​​‌‌​‌‌​‌​​‌​​​‌‌​‌‍you do.” Then the decedent called the witness to come nearer and said: “He [the accused] is afraid the court will handle -him, and he did it on purpose.” The decedent made no further statement, and died within-an hour after the convеrsation with the witness. The transaction inquired about was the homicide of the decedent accomplished by burning. The conversation occurred within a very few minutes, possibly from five to seven minutes, after the clothing of the deceased was ignited. Although the flame had been extinguished, the body was ■ still smoking, and the defendant was pouring water upon the prostrate form of his wife at the time of the conversation. The declaration of his wife under such circumstances was clearly a part of the res geste, and the instruction relative thereto is not subject to the criticism made upon it.

4, 5, 6. The court instructed the jury on the law of impeachment of witnesses by contradictory statements and the effect of. a successful impeachment. He also called- their attention to the defendant’s contention that the State’s witness, Classie Lightfoot, had sworn differently on the commitment trial, and the solicitor-general’s contention that the witness repeated the same testimony which she delivеred in the committing trial; instructing them that there was an issue between counsel as to whether or not the witness delivered the same testimony on this trial as she did before the committing court, and that the jury must determine that issue from the evidence. Many exceptions are taken to this charge. One relates to that part of ‘the chargе which *404instructed the jury that “ a witness sought to be impeached by showing that the witness has made contradictory statements may be sustained by proof of general good character of that witness. You will see, therefore, whether or not as a question of fact a witness has been successfully impeached is a matter for determination of the jury. A witness is successfully impeached whenever the minds of the jury become satisfied from the testimony in the case that that witness is unworthy of belief.” This instruction was not erroneous. Powell v. State, 101 Ga. 11 (29 S. E. 317, 65 Am. St. R. 277). Another objection is that the court having undertaken to charge on the subject of impeachment of witnesses by contradictory statements, it was incumbent upon it to charge concerning other modes of impeachment of witnesses provided by law. Our code declares that a witness may be impeached, (1) by disproving the facts testified to by him, (2) by proof of previous contradictory statements, and (3) by proof of the general bad character of the witness. Civil Code (1910), §§ 5880, 5881, 5882. If no testimоny as to the general bad character of a witness has been offered, it would be error to instruct the jury that a witness may be impeached by this mode. City Bank of Macon v. Kent, 57 Ga. 284 (9). There was no’ attempt to impeach any witness by proof of general bad character. It is urged that there was conflicting testimony, and that the court should have chargеd in terms that a witness may be impeached by disproving the facts testified to by the witness. In a certain sense testimony to disprove a statement of a witness is impeaching in its nature. A charge upon the weight and credit to be given a witness’s testimony, and the rule as to conflicting testimony, is in effect and substance a charge relating to this mode of impeachment. The jury were elaborately and properly instructed in this respect, and the court’s instruction was not open to this objection. It was also alleged that the charge was confusing and misleading, and should have been more elaborate. We do not think the charge was either confusing or misleading. The subjеct of impeachment of witnesses is not one of the main questions in a case, but is of an incidental or collateral nature; and where the court instructs ‍‌​​​‌​​‌​‌‌​‌​​​‌‌‌‌‌‌‌‌‌​​‌‌​​‌‌​‌‌​‌​​‌​​​‌‌​‌‍the jury on the mode and effect of impeachment, the instruction is not so defective as to require a new trial because the court might have elaborated his instruсtion so as to cover minor corollaries which *405may be involved in the main proposition. Nor was the instruction erroneous because the court alluded to a particular witness in stating the deductions which counsel for the State and the accused drew as to any discrepancy between her testimony in the two trials. Counsel for the State contended there was none, and counsel for the accused contended otherwise. In justice to the witness we do not think there was any substantial conflict, but certainly nothing was contained in the court’s instruction, that the jury should decide this controversy between opposing counsel by a referencе to the evidence in the ease, which was calculated to harm the defendant. Besides, this witness was the only one sought to be impeached by proof of contradictory statements, and in such a case it is not error for the court, in instructing the jury on the subject of impeachment by contradictory statements, to refer to the witness by name. Shaw v. State, 102 Ga. 660 (29 S. E. 477).

7. The defendant offered three certificates issued by a burial association in December, 1908, respectively to himself, his wife, and his mother, entitling each to a burial and funeral benefit of a stated amount according to the by-laws of the association; also a policy of insurance for $150 on the life of his mother, in which he was the beneficiary, and the premium receipt book of the company. This testimony was rejected. The defendant •contends, that in view of the fact that the State had introduced in evidence a policy of insurance on the life of the decedent, of the same date and for the same amоunt, payable to him in the •event of death, and that he had introduced in evidence a policy on his own life, payable to his wife in the event of death, issued by the same company, for the same amount, and on the same date, it was relevant to show that the insurance policies and burial certificates were’ all issued in pursuance of a plan of family protection, and to rebut any inference that he killed his wife to get the insurance on her life. The policy of insurance on his mother’s life could not possibly illustrate any issue in the case. The burial certificates were likewise irrelevant; but even if they tended to elucidate any issue in the case, their rejection was harmless, as an officer of the association was permitted to testify that the accused, his wife, and mother were insured in the association, and that the association buried the deceased on account of her certificate.

*4068. In stating the contentions of the State the court said: “Now the State claims in this case that Alma Walker died on the 21st of August of last year; and the State claims that her death was the result of a felonious act, an unlawful act of the defendant in bringing about her death, by setting fire to her and burning her up, in such a way as to bring about that death; and the State charges that the defendant in doing so is guilty оf murder.” This charge is alleged to be error, because the court failed to, invite the jury’s attention specially to the two counts in the indictment, one of which charged the defendant with setting fire to the decedent after having thrown upon her person and clothing gasoline and other inflammable liquids, and the other charged him with killing the dеcedent by setting fire to her person. The defendant was charged with having committed murder by setting fire to the decedent, and the indictment was framed to meet possible phases of evidence as to the manner in which life was taken; and the court’s summary of the State’s, contention in this respect was fair to the accused, and not open to. the criticism made upon it.

9. The court declined to charge, on-request, that “on the trial of a person charged with crime, the manner of proof ought to be more clear in proportion as the crime is more detestable.” The same degree of proof is required in all criminal trials, viz.: that the еvidence be sufficient to establish the defendant’s guilt beyond a reasonable doubt. This request was properly declined.

10. The motion for new trial includes numerous grounds, but after a careful consideration, we do not find anything contained in them which requires a new trial. The newly ‍‌​​​‌​​‌​‌‌​‌​​​‌‌‌‌‌‌‌‌‌​​‌‌​​‌‌​‌‌​‌​​‌​​​‌‌​‌‍discovered evidence was cumulative, and not calculated to produce a different result should another trial be had. The evidence is sufficient to uphold the verdict.

Judgment affirmed.

All the Justices concur.