163 Ga. 176 | Ga. | 1926
Henry Warren was tried under an indictment charging him with the offense of murder. The person alleged to have been murdered was Eobert Wilson. Jim Kemp, introduced as a witness by the State, testified in substance that he knew Eobert Wilson; that Henry Warren killed him on the third Sunday in July, 1925. He was an eye-witness of the fact. He was present at a party at the house of one John Bird, where a considerable number of people were gathered. Witness was in the room where the killing occurred. He was sitting in a chair, and a woman by the name of Eosa Barber was sitting in his lap. This woman made a remark very derogatory to another woman in the room. The other woman walked away, and a few minutes after that Henry Warren and John Bird were standing close to the door. Warren said: “Cut this-fuss out, you-sons of bitches, before I kill every one of you.” He then ran into Eobert Wilson about two steps from the witness, and shoved him with his left hand and stabbed him. Wilson did not go towards Warren at all. Warren had a knife in his hand, and shoved Wilson and stabbed him; he had a knife open when he ran into Wilson. Wilson was standing with a cigarette in his hand, preparing to light it. Warren stabbed him a little above the collar-bone in the front part of the neck. Wilson ran out and up to a wire fence, fell, and died almost immediately. Witness did not see any weapon in Wilson’s hand.
Willie Grimsley, another eye-witness to the killing, gave substantially the same testimony as that of Kemp. He testified positively that no words passed between the accused and the man who was slain. He remembered nothing of any “fuss” there. Wilson was standing up with a cigarette in his mouth.
Eosa Barber, also an eye-witness, testified substantially to the same facts as detailed by the witnesses previously named. To quote her words in part, she said: “Henry Warren was tearing through the crowd, cursing and shoving people back, and went right on to Eobert Wilson and said, 'Cut it out--it,’ and I don’t know what Eobert Wilson said, but Henry Warren grabbed hold of Eobert Wilson with one hand and stabbed him with the knife just under his neck. Eobert Wilson did not have anything in his hand; he had a cigarette in his mouth.” The details of the killing as given by this witness were in substantial accord with the details given by the other witnesses quoted above.
One Shephard, sworn in behalf of the State, testified substantially to these facts already stated. Ella Bird, another witness for the State, testified that she saw the killing; saw Henry Warren walk up to Wilson, catch hold of him and stab him. She testified that the next morning Henry Warren took Wilson’s knife out of his pocket and laid it at his (Wilson’s) feet, and next morning got his (defendant’s) wife, and she made a little mark on his neck. Told his wife to cut him on the neck, and she made a little mark on his neck. She merely sawed on his neck a little bit.
H. M. Roberts, for the State, testified in part that he saw Henry Warren on the morning after the killing, and asked him who killed Robert Wilson. Warren replied that he did not know who killed him, but said “the poor boy was killed for nothing.” B. B. Houston, for the State, testified that he went out to Henry Bird’s house the next morning after Wilson was killed. The body of the latter was lying at the end of the house in the yard. He was lying on his back; a knife was near his hand. Henry Warren said he did not know who killed him. “He never quit denying knowing who killed him until we got that knife — that knife there. That was about four days after Robert Wilson was killed. He continued denying knowing who killed Robert until I presented this knife to him. This knife was delivered to my brother. I am deputy sheriff in Miller County.” The knife referred to was introduced in evidence.
The defendant introduced no evidence, but made the following
The jury returned a verdict of guilty, without a recommendation. The defendant made a motion for new trial, which was overruled, and he excepted.
In the first ground of the amendment to the motion for a new trial complaint is made that the court erred in recalling the jury from their room after they had been charged in the ease, and after they had been out only a few minutes, and giving them another charge in the absence of the defendant and in the absence of defendant’s counsel, without the consent of defendant and his counsel. To this ground the court appends the following note: “Within two or three minutes after the main charge was delivered and before any other case was sounded, the jury was recalled to their box and the supplementary charge complained of in paragraph -one of the amended motion was delivered, the defendant being present. Defendant’s attorneys had not been excused nor did they have leave of absence, and the court thought they were present. Certainly Mr. Geer, leading counsel, according to his affidavit, was in the court-room before the charge was completed, and the court’s attention was not called to any irregularity, nor was any motion made.” We are of the opinion that the court did not err in overruling this motion for a new trial, so far as it
If the defendant on this trial seriously insisted on the theory of self-defense, or there was any chance that he might have at the hands of the jury a verdict of not guilty upon this theory of the case, the charge was apparently helpful and not injurious. The jury had been charged and had retired, but had been out only two or three minutes, hardly time for them to take their seats in the jury-room and begin the consideration of the case,
It is stated in the judge’s note that he thought that counsel was still in the court-room, for the jury was called back almost immediately; that is, before the judge had sounded any other case. If the jury was called back in two minutes and before another case could be sounded, counsel for the accused must have departed from the court-room almost immediately. And they also returned quite promptly; for they were in the court-room while a part of the additional charge was being given to the jury, and the whole of the additional charge would not have required more than two minutes to deliver.
The rulings made in headnotes 2 to 11, inclusive, require no elaboration.
In the only ground of the motion for new trial which we have not yet considered error is assigned upon the refusal by the court of a request to give the following instruction, which was duly submitted before the court began his charge to the jury: “If you believe from the evidence or from the statement of the defendant that he and Robert Wilson had a sudden quarrel and that they mutually agreed to fight upon the spot or did fight, and that the defendant, Henry Warren, killed Robert Wilson while engaged in mutual combat as the result of that sudden violent impulse of passion supposed to be irresistible, it would be your duty to find the defendant guilty of voluntary manslaughter, and not murder.” We are of the opinion that the court did not err in refusing to give this in charge to the jury. We have set forth in substance the testimony of the witnesses for the State. That evidence shows wilful and unprovoked murder. But the defendant in his statement said in part: “I spoke to the woman inside of the house, and I said, cIf I was you all I would not be arguing that way,’ and Robert Wilson spoke to me and said, ‘You - son of a bitch, what have you got to do with it ?’ and I didn’t say nothing.
No material error having been shown by the assignments of error in the motion for a new trial, and the evidence authorizing the verdict, the judgment of the court below must be affirmed.
Judgment affirmed.