Opinion
13216.
APRIL 11, 1940.
Murder. Before Judge Dickerson. Coffee superior court. December 2, 1939.
E. S. Chastain and J. H. Williams, for plaintiff in error.
Ellis G. Arnall, attorney-general, John S. Gibson, solicitor-general, and Herschel E. Smith, assistant attorney-general, contra.
1. An instruction to the jury, that "the charge of the court is the law of the case, and by it you are bound, except that you are the judges of the law in applying it to the facts as you find them to be," is not erroneous on the ground that it causes the jury to disregard other instructions on reasonable doubt and such matters, where immediately preceding this excerpt the jury is correctly instructed that they are the judges of the law and the facts, and that they are to take the law from the court as given in the charge.
2. An instruction to the jury that, "In the event you should find the defendant guilty of murder, the form of your verdict would be, `We, the jury, find the defendant guilty,'" is not erroneous as misleading and as excluding the right of the jury to recommend life imprisonment, where immediately following this portion of the charge the jury are instructed with reference to their right to recommend mercy and the form of their verdict in such case, and it is explained that it is the duty of the court in the event of such a verdict to sentence the defendant to life imprisonment in the penitentiary.
3. Where, in grounds of a motion for new trial assigning error on the admission of certain testimony, it appears that immediately after such testimony had been elicited the movant's counsel stated that he thought the evidence was hearsay and incompetent, and the solicitor-general stated that he agreed with counsel and did not insist on it, the evidence will be considered withdrawn; and in the absence of a request that the court so instruct the jury and refusal thereof, the assignments of error are without merit.
4. The verdict of guilty was authorized by the evidence.
No. 13216. APRIL 11, 1940.
Euris Hopkins was tried and convicted on an indictment for murder. His motion for new trial was overruled, and he excepted.
Frank Norman testified for the State, in substance, as follows: On October 8, 1939, about 8 or 8:30 at night, the witness left his home, going first to the home of a daughter of defendant's wife's brother in Pearson. The witness's wife and her sister Elizabeth, the defendant's wife, Beulah Hopkins, and her sister, Drucilla Curry, were traveling in the car with him. They then went to the hotel and parked the car in front of the entrance. He went to Geech's place, which was near the hotel, where he found the defendant, who came out of Geech's place and went upstairs in the hotel with the witness. The witness came out of the hotel, and did not know where the defendant went. About two or three minutes later Calvin Hudson walked up to the car where he was standing, and in about ten minutes the defendant came up and "kind of" shoved the witness aside, and stabbed Calvin Hudson. He did not see the knife, but he saw the defendant strike Hudson in the chest and saw blood on his chest immediately. Hudson ran up the street, turned around and came back, and then ran toward Frank Moore's. The last time witness saw him he was going toward Frank Moore's. The next time he saw him he was at the undertaker's. The defendant cursed and stabbed the deceased, using vulgar language. After the stabbing the deceased said: "You've got me for the wrong man. I ain't done nothing." The defendant stood there for a short time after the deceased ran away. The witness had known the defendant about a year. The defendant told him that his home was in Milledgeville. He and the defendant left Florida together and came to Pearson together. He had known Calvin Hudson about a month and a half. Hudson was working on a hard road. Witness did not know whether the defendant bought any liquor in the hotel or not. He did not see the defendant drink any liquor at any time, and had never before this time heard the defendant say anything about Hudson. He did not smell any liquor on the defendant, and the defendant showed no signs that he was drinking.
Calvin Hudson was carried to the hospital. Dr. T. H. Clark testified, that he examined the wound, which was in the left chest, about three eights to one half of an inch in length, ranging downward; that it was over the upper part of the heart; and that death was caused by a hemorrhage from the stab wound inflicted by a sharp instrument. Ross Morris testified, that he was standing near and saw the defendant strike another man; that he heard the other man say nothing, and if the defendant said anything before striking the blow, Morris did not hear it; and that in about thirty minutes he saw at the hospital the body of the man who was struck. Elzie Meeks, a policeman, testified, that when he went to the home of the defendant shortly after the stabbing took place, he went to the rear door and heard a noise and looked and saw the defendant running through the weeds; that the defendant fell and he caught him; and that he got at the defendant's home a suit-case which was packed, containing a number of articles of wearing apparel, some of which the defendant said were his. Witness Burch testified for the State, that he knew the defendant and worked with him "last week" when he heard the defendant say that he was going to "somerset" a negro before he left and went back to Florida, and that he was going back to Florida "this week." The sheriff testified, that the defendant was delivered to him at the jail in about an hour from the time the killing was reported to his office; that the defendant was not drunk at that time; that in his opinion he was cold sober; and that the sheriff smelt no liquor on him, and there were no signs that he was sobering up.
The defendant made the following statement: "Well, I don't know anything no more than this. I was down there, and he came down there. Frank Norman came after me, so we went upstairs, and I bought a drink of liquor, and he tasted it and I drank the rest of it, and I came back downstairs, and I went up there and got me a package of cigarettes, and I come on back down there, and I was smoking, and this boy that they claim I killed, me and him ain't had no cross words at all. He ain't said nothing to me, and I ain't said nothing to him; but I was drunk, and I hadn't even had no argument at all, and I didn't know I had stabbed the boy, and it was all by — I didn't know it. After I found out I had, I just went off. So far as me and him having any argument, we didn't have any argument at all. I didn't even know the boy, and he didn't know me. Hadn't never seen him before but once, and I didn't know him then, and hadn't never spoke to him; and I ask you'll to be as light on me as you possibly can, cause that's all I know about it. I didn't even intend to kill the boy or nothing."
1. Ground 4 of the motion for a new trial complains of the following excerpt from the charge to the jury: "The charge of the court is the law of the case, and by it you are bound, except that you are the judges of the law in applying it to the facts as you find them to be." It is insisted that this portion of the charge declared an exception to the rule of law that the jury is bound by the law as given them in charge, and that it worked an injury to the defendant, in that the jury were caused thereby to believe that they were not bound by the law as given by the court and might give little or no weight to the portions of the charge relating to reasonable doubt and other matters favorable to the movant. The excerpt excepted to can not be understood and properly construed without at the same time taking into consideration the instruction immediately preceding, which was as follows: "You are the judges of both the law and the facts in criminal cases. The law you take from the court as given you in charge, and the facts you get from the witnesses who testify in the case and from the statement of the defendant, and to the facts you apply the law, and thus make your finding." From these two parts of the charge it is apparent that the jury was instructed as required by the Code, §§ 2-201, 27-2301. It has been held by this court that the jury should make application of the law to the facts, and the result of that application is the exclusive province of the jury to find. Smith v. State, 49 Ga. 482; McRae v. State, 52 Ga. 290 (5); Jackson v. State, 91 Ga. 271 (5) ( 18 S.E. 298, 44 Am. St. R. 22). In Habersham v. State, 56 Ga. 61, it was held that "it is error to charge the jury that they are in no sense judges of the law." There is no merit in this ground.
2. Complaint is made because the court charged the jury as follows: "In the event you should find the defendant guilty of murder, the form of your verdict would be, `We, the jury, find the defendant guilty.'" It is here insisted that this instruction, being complete within itself, unqualifiedly instructed the jury that if they found the defendant guilty of murder they should bring in the verdict stated, without more, that it excluded the recommendation to life imprisonment which the jury is authorized to make, that it led the jury to believe that if they found the defendant guilty of murder they should return a verdict in the form given, thus automatically imposing the death penalty, and that it was misleading and confusing to the jury. In our consideration of this ground of the motion we have read carefully the charge of the court with reference to the form of the verdict the jury should return. We do not believe that this isolated sentence from the charge correctly or fairly reflects the true meaning of the instructions actually given to the jury. An examination of the charge discloses that immediately preceding the portion excepted to the jury was instructed as follows: "The punishment for persons convicted of murder shall be death, unless the jury trying the case recommend that the defendant be punished by imprisonment in the penitentiary for life." Immediately following the excerpt complained of the jury was instructed as follows: "Upon the return of such a verdict it would be the duty of the court to sentence the defendant to be electrocuted at the State prison farm at Reidsville, Georgia. If you should convict the defendant of murder and desire to recommend mercy, or recommend that he be punished by imprisonment in the penitentiary for life, you would have a right to attach that recommendation to your verdict. Should you do that, it would be the duty of the court to sentence the defendant to hard labor in the penitentiary of this State for life. In the event you should convict the defendant and recommend mercy, or that he be punished by imprisonment in the penitentiary for life, the form of your verdict would be, `We, the jury, find the defendant guilty, and we recommend that he be punished by imprisonment in the penitentiary for life.' Should you render that kind of a verdict, it would be the duty of the court to sentence the defendant at hard labor in the penitentiary for life." Thus it clearly appears that the jury was fully and properly instructed on the form of the verdict they should render, their right to recommend mercy, and the meaning of such recommendation. Of course the judge did not do the impossible and speak the entire instruction in one word, but he charged the law in a correct and clear manner, and left no room for confusion or misunderstanding on the part of the jury. Cf. Miller v. State, 151 Ga. 710 (4) ( 108 S.E. 38). The purpose of the law is that the charge as a whole give instructions to the jury on the law involved; and it is not required that the judge repeat in connection with instructions on each principle of law all instructions on the other principles involved in the case. See Lanier v. State, 187 Ga. 534 (6) ( 1 S.E.2d 405). There is no merit in this assignment.
3. Grounds 6 and 7 of the motion make substantially the same assignment of error. In both, a series of questions, colloquies between counsel, and statements by the court are set forth. In the first, it is complained that error was committed in allowing the testimony, and in the latter it is complained that error was committed in refusing to exclude the same. Neither ground shows any ruling of the court of which complaint is made, and both grounds show that at the conclusion of the interrogation of the witness and his answers, statements by the court, and by counsel, counsel for the defendant said: "I would like to say this, that the description given to the negro's word, if the court please, I don't think that it would be competent. It is hearsay." Whereupon the solicitor-general stated: "I doubt it myself. I don't insist on it." Irrespective of whether the testimony in question was admissible, and whether counsel for the defendant objected thereto and error is properly assigned, when counsel made the statement above quoted, which was followed immediately by the statement of the solicitor-general above quoted, the evidence was in effect withdrawn from the jury, and the silence of counsel for the defendant is indicative of a satisfaction therewith; and in the absence of any request of the court to instruct the jury that the evidence was withdrawn, there is no legal ground for complaint on the part of the defendant. There is no merit in either of these grounds.
4. The first three grounds of the motion for a new trial question the sufficiency of the evidence to support the verdict. In the light of the defendant's statement to the jury, it can not be said that he denies having struck the blow that resulted in the death of the deceased. The evidence for the State to the effect that the defendant did strike the fatal blow is unchallenged and unimpeached. But it is insisted that the evidence does not meet the requirements of the statute (Code, § 26-1002), that the killing must be done with malice aforethought, either express or implied. Express malice is defined (§ 26-1003) as being "that deliberate intention unlawfully to take away the life of a fellow creature, which is manifested by external circumstances capable of proof." The uncontradicted evidence shows that immediately before the fatal blow was struck the defendant cursed the deceased and called him a vile and vulgar name. Thus it can not be said that the evidence does not show express malice. However, malice need not be express, but may be implied. The Code, § 26-1004, declares that "malice shall be implied where no considerable provocation appears, and where all the circumstances of the killing show an abandoned and malignant heart." These grounds of the motion are without merit. The evidence supported the verdict.
Judgment affirmed. All the Justices concur.