Opinion
13787.
JULY 8, 1941.
Murder. Before Judge Hawkins. Fannin superior court. April 5, 1941.
Wood Spence, for plaintiff in error.
Ellis G. Arnall, attorney-general, H. G. Vandiviere, solicitor-general, E. J. Clower and C. E. Gregory Jr., assistant attorneys-general, contra.
1. Uncommunicated threats made by the deceased against defendant are not admissible on the trial of a case involving the question whether the slayer was justified in taking the life of the deceased, unless there is evidence showing or tending to show that the deceased was the aggressor and that the defendant killed him in self-defense.
2. It is not error to charge the jury that the law will not justify a man in deliberately killing another for a past act or an accomplished act of sexual intercourse with his affianced sweetheart, when the act is not imminent or about to take place, and that the fact that such an act had previously taken place would furnish neither justification nor mitigation for the killing.
3. The evidence authorized the verdict, and it was not error to refuse a new trial.
No. 13787. JULY 8, 1941.
Johnson was convicted of the murder of Dixon by shooting him with a pistol, and was sentenced to life imprisonment. (A former trial had resulted in a mistrial.) He made a motion for new trial on the general grounds, which was amended by the addition of two special grounds as follows:
1. "After the statement of the defendant to the jury counsel for the defendant offered the following testimony out of the presence of the jury: Judge Wood: `We now offer to read the testimony of Miss Ruby Woody.' Mr. Vandiviere: `We object to that testimony in the presence of this jury, because her testimony at the last term of this court was given outside of the presence of the jury, and was excluded by the court, and no part of it ever went to the jury.' The court: `What is it that you are offering?' Judge Wood: `I am offering the testimony that was given in this case by Miss Ruby Woody, who at that time was not married to the defendant, and who, it appears now, has since that time been married to the defendant. But this testimony was given at a time when she was competent as a witness to testify concerning the relationship between herself and this deceased, during the winter, at a time when the snow was on the ground, which evidence you will recall was objected to before, and which your honor excluded. The evidence has been transcribed by the reporter, and I have it in transcript form now. And if you honor desires that I read it, I will be glad to do so; otherwise the evidence can be tendered in the written form.' Mr. Vandiviere: `I object to it on the ground that it is immaterial and irrelevant in this form, and under the status of the woman at the last term of the court. We object to it further on the ground that this woman is now the wife of the defendant, and she would not be competent to testify, and this could not be used.' The court: `I don't think the evidence would be competent. I don't think it is admissible, even if she were a competent witness now; and I exclude it. Let the jury come back.'
"In order that the court may further understand the nature of said evidence, movant shows that the testimony which was given in the present case by Miss Woody when the case was tried the first time, which was at the April, 1940, term of Fannin superior court, and which was transcribed by the court reporter, and which movant tendered in evidence in the written form as transcribed by the court reporter, and which movant by and through his counsel offered to read to the court and jury, together with objections by State's counsel and the ruling of the court, are as follows: Before introducing any evidence in the above case counsel for the defendant asked the jury be retired, when the following transpired: Ruby Woody being sworn, testified (in the absence of the jury), on direct examination by Judge Wood: `Q. Do you know Charlie Johnson over there? A. Yes. Q. How long have you known him? A. About three or four years. Q. Do you remember the night that Bruce Dixon was shot down here in town? A. Yes, sir. Q. About two months before that time, and on a night when there was snow on the ground, did you start or go home from Blue Ridge? A. I went with Bruce Dixon, yes, sir. Q. Prior to that time, had you been going with Charlie Johnson? A. Yes, sir. Q. For how long? A. About three years. Q. Were you engaged to be married to him? A. Yes, sir. Q. Had the date been fixed for the wedding? A. Yes, sir. Q. How long was it after this shooting took place that you were going to be married? A. On Sunday after this took place. Q. Are you still intending to marry him? A. Yes, sir. Q. On your way home on this night back in the winter when there was snow on the ground, when you rode out with Dixon, had you been to visit your sister at Tate? A. Yes, sir. Q. And had come back here on the bus or train to Blue Ridge? A. On the bus. Q. He was going home, and you were riding out to your home with him? A. Yes, sir. Q. On your way out there did Bruce Dixon have intercourse with you? A. Yes, sir. Q. Did you consent for him to have it? A. No. Q. Did you get out of the car and try to escape from him? A. Yes, sir, I started to walk. Q. Did he have the intercourse with you with your consent, or did he do it with force? A. With force. Q. What did you tell him that you were going to do before he did that, and after this? A. Told him I was going to tell his wife and Charlie and my folks. Q. What did he say about your telling Charlie? When you told him that you were going to tell Charlie what did he say to you? A. Will you let me say just exactly what he said? Q. Yes. A. He said if I told him that he would kill the damn fool. Q. Did you tell Charlie about it? A. Yes. Q. Immediately or some time later? A. The first time I saw him. Q. How many days after that was it that you told him? A. Well, it was Sunday after Tuesday night."
Judge Wood: "That is the evidence that we want to tender by this witness." Mr. Vandiviere: "We object to it as immaterial and irrelevant, and it sheds no light on this case." Judge Wood: "We propose to follow that up then with testimony that after this defendant had been advised of what had happened to his affianced wife that he went to the Dixon boy at Dial, stopped him in the road and talked to him about it, and told him that the girl had advised him about it, and asked him to leave her alone, that he was going to marry her and he didn't want him to be bothering her any more, and that Dixon gave him no satisfaction about it and told him that he wasn't married to her and had nothing to do with it, and that he would see him later about it. We propose to show that on the night of the shooting down here that he drove up there and saw this girl standing there on the sidewalk, and this boy, and that he whipped his car right into the curb and stopped, and that this boy went up to talk to him about it again after the girl's father talked to him, and that they came here for the purpose of getting a warrant for him for rape, and after the girl's father talked to him that this defendant went up there to ask him to go on and leave this girl alone, and that he told him then that he would kill him, and started to get out of the car in a threatening manner, and we are offering to prove that by competent witnesses, and we say that the evidence is competent." The court: (After argument) "I sustain the objection." Judge Wood: In order to complete the record, I want to get this in the record: We propose to show, in addition to the evidence that has been given by this witness Miss Woody, that upon the actual occasion of the shooting that the deceased came up to where the affianced wife of this defendant was standing in front of a lighted window, and looked in her direction and saw her and turned his car immediately into the curb and stopped, and that while in that position the father of the girl went to him and remonstrated with him and told him that he was going to swear out a warrant for him at that time for rape, and that the defendant himself asked him to leave his girl alone, and that he told him then that he would kill him, and that he started to get out of his car to advance upon him, and he shot him." The court: "The latter part of that would be admissible." Judge Wood: "We ask the court now to permit the testimony that we have offered by this girl." The court: "I think the testimony would not be admissible, and I exclude it." Movant avers as a part of this ground: (a) That movant offered the said evidence. (b) That the court ruled the evidence out and did not permit the same to be considered by the jury. (c) That the evidence would have benefited movant, and that its exclusion was hurtful and prejudicial to movant, for the following reasons: (1) Said evidence offered showed that the deceased, Bruce Dixon, had threatened to take the life of movant if movant discovered that the said Ruby Woody had been raped and ravished by the deceased. Said evidence further shows that this threat was communicated to the movant prior to the date of the death of Bruce Dixon. (2) The said evidence offered showed that the said witness, Miss Ruby Woody, was the affianced wife of movant at the time Bruce Dixon met his death, and said evidence and testimony showed that the movant had a right to expect that Bruce Dixon would make another attempt to commit rape on the said Ruby Woody. (d) That the evidence was material to the issue involved in the case for the following reasons: (1) Said evidence was material to the issue in the case, in that said evidence showed that Bruce Dixon had made a threat to kill movant prior to the death of the said Bruce Dixon, and that said threat had been communicated to movant, and said evidence was therefore material to movant's contention that he shot and killed Bruce Dixon in defense of his own life. (2) Said evidence was also material to the issue in said case, in that said evidence showed that Bruce Dixon, the deceased, had already once committed rape on Miss Ruby Woody, the affianced wife of movant, and said evidence was material to the defense of the movant that he shot and killed Bruce Dixon to prevent the deceased's again raping and ravishing Miss Ruby Woody, the affianced wife of this movant."
2. "Because the court erred, as movant contends, in charging the jury as follows: `Now, gentlemen, the defendant in his statement contends, among other things, that the deceased had at some previous time committed the offense of rape upon Ruby Woody, to whom he was engaged to be married, and whom it is contended he has since married, and that this fact had been brought to his knowledge; and that he had requested the deceased to leave her alone, and that the deceased had replied that the defendant was not married to her, and that he would do as he pleased about her, and would see him later. And it is contended in behalf of the defendant that the defendant had the right to shoot and kill the deceased to prevent the repetition of such acts by the deceased. The court charges you in that connection that while a man may in good faith defend his affianced sweetheart's virtue under the same principle of reason and justice that he might defend his own person and be justifiable in so doing, if the killing be necessary in order to prevent rape or sexual intercourse on the part of the person killed with the affianced sweetheart of the person killing, if the jury find that such would be an instance standing upon the same footing of reason and justice as those enumerated in the Code as justifying homicide, and which the court will hereafter read to you, the law will not justify a man in deliberately killing another for a past act or an accomplished act of sexual intercourse with his affianced sweetheart, and when the act is not imminent or about to take place. A killing after such an act has been completed or when it is not necessary in order to prevent such an act on the part of the person killed with the affianced sweetheart of the person killing, or when an act is not imminent or impending or about to take place, is not one of the instances which stand upon the same footing of reason and justice as those enumerated in the Code as justifying a homicide. In the instant case it is not contended that such an act was either imminent, impending, or about to take place at the time of the killing. And the fact that such an act had previously taken place, if you should find that it had, would furnish neither justification nor mitigation of the killing now under investigation, if you should find that it took place in the way and manner as charged in the bill of indictment.' Movant avers that such charge was erroneous and injurious to him, because said charge was erroneous and unsound as an abstract principle of law." His motion was overruled, and he excepted.
1. Certain testimony was offered by a witness since disqualified, the evidence having been delivered before the judge, out of the presence of the jury, under the circumstances recited in the motion for new trial. Whether or not the testimony offered was "given under oath on a former trial," within the meaning of the Code, § 38-314, we need not decide, since we are satisfied that the judge was correct in taking the view that it was otherwise inadmissible. The testimony of the girl related to two matters. She swore that at a time when she was engaged to marry Johnson, the defendant, Dixon had sexual intercourse with her forcibly and without her consent, and that upon her saying to Dixon that she was going to tell his wife, her folks, and Johnson about it, Dixon said "if I told Johnson he would kill the damn fool." She further testified that on "Sunday after Tuesday night" she told Johnson about it, which was the first time she saw him after the occurrence. She did not testify that she told Johnson of Dixon's remark that "he would kill the damn fool," nor does it otherwise appear in the record that this conditional threat was communicated to Johnson. The rule is that a threat made by the deceased against the defendant, uncommunicated before the homicide, is not admissible on the trial of a case involving the question whether or not the slayer was justified in taking the life of the deceased, unless there is evidence tending to show that the deceased began the mortal conflict, and that the defendant killed in self-defense. In Warrick v. State, 125 Ga. 133 ( 53 S.E. 1027), the previous cases were reviewed, and the statement made that the rule as we have stated it is correct. See Rouse v. State, 135 Ga. 227 (4 a) (69 S.E. 180). There is no evidence before us tending to show that the deceased was the aggressor, or that the defendant killed him in self-defense. No witness was sworn who saw the actual shooting, and no witness as to what transpired immediately before. The killing occurred about nine o'clock at night on a public street in the down-town area of the city of Blue Ridge. The deputy sheriff arrived on the scene shortly afterwards and found the defendant standing on the sidewalk with his empty pistol still in his hand, and the deceased on the front seat of his car, "kinder humped over and slid out." The officer on his approach asked the defendant what the trouble was. As to his conversation with the defendant he testified as follows: "When I saw Charlie Johnson, the defendant, standing there with a pistol in his hand, and Bill Smith, I asked them what the trouble was, and Johnson says, `Here is your gun.' I believe he handed me the gun before I asked about the trouble; he handed me the gun; then I got out, and I asked what the trouble was. Then he says, `Put me in jail or do whatever you please with me,' and I says, `What's the trouble?' and he says, `There is the man,' and I says, `Who is it?' and he says, `You know him.'" The deceased died on the way to a hospital. Four bullet holes were in his body, made with pistol balls. No weapon of any kind was found on the deceased or in his car. When the officer asked him "what the trouble was," the defendant did not then and there claim that the deceased was the aggressor or that he killed the deceased in self-defense; but his statement given on the trial contains a narrative of what he says happened at the time, which his counsel insists shows that the deceased was the aggressor, and that Johnson killed him only because he believed it necessary in order to save his own life. It was ruled by a unanimous bench in Vaughn v. State, 88 Ga. 731 ( 16 S.E. 64), that uncommunicated threats will not be received in evidence unless they are relevant and competent, unaided by the contents of the statement. This ruling has been consistently adhered to. Pride v. State, 133 Ga. 438 ( 66 S.E. 259); Medlin v. State, 149 Ga. 23 ( 98 S.E. 551); Vincent v. State, 153 Ga. 278, 291 ( 112 S.E. 120); Chapman v. State, 155 Ga. 393 ( 117 S.E. 321); Luffman v. State, 166 Ga. 296 ( 143 S.E. 371). We do not feel justified in writing into the well-recognized rule an exception in a case where there is no eye-witness to the homicide, as suggested by counsel for plaintiff in error. That would in effect be making of the defendant a witness in his own behalf. In the Vaughn case, supra, in the same division of the opinion in which it is ruled that the statement could not serve as a foundation of the threat, the court through Bleckley, Chief Justice, said: "If the accused, by electing what matter he will inject into his statement, could render this or that fact which lies outside both of the statement and the evidence admissible when it would otherwise be inadmissible, his privilege would be not merely one of making a statement, but one of making evidence in his behalf out of that which was not evidence until he chose to give it an evidentiary stamp by introducing something into his statement to which it would be pertinent. If he could do this, he might send the evidence spinning off through forensic space in any direction he might choose to give it."
2. The other portion of the proffered testimony of the witness since disqualified, and the judge's charge complained of, are both governed by the same principle of law. Exactly how much time elapsed after the occurrence to which the witness testified and the homicide we do not know, but it was certainly some days, and may be considerably longer. It is fairly inferable from the testimony that she placed the day of the week as Tuesday, for she said she told Johnson "Sunday after Tuesday night." Then, after she had informed him of what had happened, according to the prisoner's statement, he accosted Dixon about it, and after a talk with him they parted. The evidence of the past act, the completed act, days before, at another place, under no view was admissible under any issue before the jury, as ruled by the judge. Likewise it was a correct charge to instruct the jury that the law will not justify a man in deliberately killing another for a past act or an accomplished act of sexual intercourse with his affianced sweetheart. Jackson v. State, 91 Ga. 271 ( 18 S.E. 298, 44 Am. St. R. 22); Farmer v. State, 91 Ga. 720 ( 18 S.E. 987); Baker v. State, 111 Ga. 141 ( 36 S.E. 607).
The lurid language of Chief Justice Lumpkin in Biggs v. State, 29 Ga. 723 (76 Am. D. 630), so often quoted by counsel in cases similar to the one at bar, and frequently with telling effect, does not justify a homicide because of a past act of the character under discussion. In Ellison v. State, 137 Ga. 193, 194 (4 a) (73 S.E. 255), it was said by this court, whose mouthpiece was Mr. Justice Lumpkin, a grandson of the Chief Justice who wrote the opinion in the Biggs case, that the facts in Biggs v. State, supra, "and the points actually decided were different from a case involving killing merely in revenge for a past offense. The language used in the discussion in that case has been considered, and held not to conflict with later rulings, so as to override them. Wilkerson v. State, 91 Ga. 729, 733 ( 17 S.E. 990, 44 Am. St. R. 63); Gossett v. State, 123 Ga. 431, 435 ( 51 S.E. 394)."
3. The verdict was supported by the evidence, and it was not error to refuse a new trial.
Judgment affirmed. All the Justices concur.