Opinion
16069.
FEBRUARY 12, 1948.
Murder. Before Judge Price. Tattnall Superior Court. October 17, 1947.
Dan S. Cowart and C. L. Cowart, for plaintiff in error.
Eugene Cook, Attorney-General, R. L. Dawson, Solicitor-General, and Wright Lipford, Assistant Attorney-General, contra.
The verdict was amply supported by the evidence, and it was not erroneous to overrule the motion for new trial as amended.
No. 16069. FEBRUARY 12, 1948.
Ernest Smith and Sylvester Byrd were jointly indicted by the Grand Jury of Tattnall County for the murder of Fostell Smith (herein called the deceased). The State elected to try the defendants separately and placed Ernest Smith (herein called the defendant) on trial. The jury returned a verdict of guilty, without recommendation, and the defendant was sentenced to be electrocuted. The exception here is to the overruling of his motion for new trial as amended.
On the trial of the case the material part of the State's evidence was as follows:
Brad Smith, father of the deceased woman, testified: His daughter and the defendant had been living together for about six or eight years, and had three living children. They said they were married but they never had the license recorded. They had separated on several occasions. The deceased was living at Reidsville at the time of the homicide.
Katie York testified: On the night before the deceased was killed she was on the way to her home and she heard the deceased crying, and stopped to see what was the matter. The deceased was lying across the bed with her arm up and asked the witness to bandage her arm. The defendant was there, and the deceased said that he had broken her arm. The defendant told the deceased in the presence of the witness that he was going to kill her.
Sylvester Byrd testified on direct examination twice, and on cross-examination twice. A composite of his testimony tends to show the following: Prior to the date of the homicide he and the defendant worked for Segal Durrence, and both lived near Shiloh. On the Saturday evening of December 30, 1947, the date of the homicide, the defendant asked the witness to come to Reidsville with him, which the witness agreed to do. After they had gone to several places they went to the home of the deceased. The defendant knocked on the door, but was not admitted for five or ten minutes, and in a few minutes a man came out of the house barefooted, carrying his shoes in his hands. The man told the defendant "not to think hard of him because he was there, that he wouldn't be there if she hadn't opened the door for him, if she hadn't give him cause he wouldn't have been there." The defendant told him that he didn't blame him, "but that woman was going to get hers that night." The witness saw the deceased immediately after that and she was dressed in night clothes. The defendant ran to the car and got his shotgun and went in the house, and the witness heard sounds of fighting, and heard the deceased begging the defendant not to hit her and not to kill her. The defendant drove the deceased out of the house to the car, and told the witness to put the children in the car. The defendant then drove the car down the road, stopping twice on the way to beat the deceased, once with his fist and the second time with the crank of the automobile, hitting her with it several times across her head. When they reached the house where the defendant lived, he stopped the car, and the witness took the children in the house. The deceased finally got possession of the crank that the defendant was beating her with and the defendant got out with the shotgun. The deceased began backing away, and they were arguing. The deceased asked the witness to stop the defendant and the witness started toward him, but he warned the witness not to bother him, and the witness went no further. The witness heard the gun fire, and the deceased fell and called to him. The witness and the defendant carried her in the house and put her on the bed. The witness told the defendant that he was going to leave, and the defendant said that he could not go. The deceased started begging for a doctor and asking for water, but the defendant would not get a doctor or give her water, or let the witness do either. She cried and called for the witness during the night, but the defendant would not let him go to her. The witness did not know how long she lived. Early the next morning the defendant put the children in the car, and he and the witness went to Reidsville and stayed there all day. The witness was afraid of the defendant and did not tell any one what had happened. The next night the defendant forced the witness by threats to return with him to the house where the body of the deceased was. The defendant wrapped the body in an old quilt, wrapped a clothes wire around the quilt, and tied a wheel to it. They took the body in the car to the river and the defendant dropped the body in the river.
W. E. McDuffy, investigator with the Georgia Bureau of Investigation, testified: He investigated the alleged murder of Fostell Smith. He viewed the body of the deceased after it had been removed from the river. Her left eye was completely out, she had numerous contusions about the face which showed that she had been hit by some blunt instrument, and her large intestines were completely emptied from the lower part of her body. She had been wrapped in a blanket, fastened by wire to a wheel, and the witness identified each of these objects as exhibits. Sylvester Byrd gave them a detailed description of the events happening on the date of the homicide, and the next day, and his testimony on the trial varied very little from the statement made to them.
The defendant introduced no testimony. His statement was as follows: "Late Saturday night I went to town here. I was living down there every night. I had come there and about twelve o'clock I went to her house where I was living too. When Sylvester and I got there, I knocked on the door and she didn't open it. I knocked again and she opened it. I walked in and this other fellow walked from around the bed and I asked him what he was doing there. I told Sylvester to go to the car and get my gun which he did and brought it to me. Me and her fought in there for a while, and me and her got in the car and went on home, down yonder, she was going back to stay with me. She got out of the car, Sylvester got out and I got out. He was carrying the children in the house and me and her were arguing. When she got out she got out with the crank and when she did I had the gun. I had loaded the gun up here. Me and her argued a while and we never passed no licks out there. We kept on arguing and she drawed the crank back to hit me that way with it [indicating]. I had the gun in my hand and I throwed up the gun and jumped back. I had my hand under the gun, not on the trigger, and it fired off. We took her and carried her in the house and laid her down and she lived about thirty minutes. The reason I didn't go tell nobody was because I was scared and I didn't know what to do."
After the statement was made, the State introduced A. W. Dubose, who testified: He examined the body of the deceased and found two or three bruises on her head, her left eye knocked out, and a hole shot in her stomach. On investigation of the premises where the defendant lived they had found where a clothes wire had been cut, and the place where a wheel had apparently been removed from the grass. There was blood under the driver's seat, on the left foot mat, and on the running board of the defendant's car. Sylvester Byrd had made a statement of the homicide to them in the defendant's presence, and the defendant did not deny it.
Bill Eason testified: The deceased lived in a house right above him. A few days before the homicide he heard the defendant threaten to kill the deceased.
There was evidence that the defendant had married Catherine Towns about two years before the homicide.
1. In ground 1 of the amended motion for new trial, it is contended that the court gave the principle of justifiable homicide as set forth in the Code, § 26-1011, and the principle of justifiable homicide as applied to mutual combat in § 26-1014, so as to make them applicable to the same statement of facts; the principles of law embraced in these sections are entirely separate and distinct, and the charge confused separate principles of law and was calculated to confuse and mislead the jury; the charge placed a greater burden on the defendant than the law requires; it qualified and limited the law of self-defense; the law of justifiable homicide as applied to mutual combat has no connection whatever with the law of justifiable homicide as set forth in § 26-1011.
This court has repeatedly held that it is reversible error for the court to charge §§ 26-1011, 26-1012, and 26-1014 in such manner as to confuse the jury in a proper application of the principles of law contained in § 26-1014. Franklin v. State, 146 Ga. 40 ( 90 S.E. 480); Boatright v. State, 162 Ga. 379 (4) ( 134 S.E. 91); Little v. State, 164 Ga. 509 (5) ( 139 S.E. 37). But it is not error to fail to charge the law of justifiable homicide where such law is not applicable to the facts of the case. Miller v. State, 139 Ga. 716 (4) ( 78 S.E. 181); Benjamin v. State, 150 Ga. 78 (2) ( 102 S.E. 427); Turner v. State, 190 Ga. 316 ( 9 S.E.2d 270).
The court's charge on justifiable homicide under the Code, § 26-1011, was not authorized by any evidence. There is no evidence in the record that the deceased had made any assault on the defendant or that it was necessary for the defendant to kill the deceased in self-defense or that the deceased was attempting to commit any felony on the person or property of the defendant. The jury would have been authorized to find, under the State's evidence, that the possession of the automobile crank by the deceased was solely for the purpose of preventing the defendant from further using it as an instrument of battery on the person of the deceased.
If any principle of justifiable homicide could be involved in this case, its rests solely upon the defendant's statement that he and the deceased fought in the house, and at the time of the killing the deceased had drawn back the crank to hit him, and he threw up the gun, and it was accidentally discharged. The law of justifiable homicide in mutual combat might possibly be involved under such statement of the defendant, but the law of justifiable homicide under § 26-1011 could not be involved.
Since the law of justifiable homicide under § 26-1011 was not involved under the facts of this case, it would not have been error to fail to charge such section, and the charging of the section gave to the defendant a defense to which he was not entitled, and was more favorable to him than was authorized by the evidence. Even if the charge as given had the effect of limiting the law of justifiable homicide to the principles contained in § 26-1014, this was not harmful error to the defendant, since he was entitled to no other charge on justifiable homicide under the evidence and his statement, and the charge did not destroy any defense to which he was entitled. Jackson v. State, 135 Ga. 685 (2-b) ( 70 S.E. 245); Jones v. State, 197 Ga. 604 ( 30 S.E.2d 192).
2. In ground 2 of the amended motion for new trial, it is contended that the court erred in failing to charge the Code, § 26-1017, as follows: "The homicide appearing to be justifiable, the person indicted shall, upon the trial, be fully acquitted and discharged." It is the contention of the defendant that the principle of homicide in self-defense was directly involved in the case, and the failure of the court to charge § 26-1017 had the effect of withdrawing from the jury his theory of justifiable homicide. Under the rulings made on ground 1 of the amended motion for new trial, this contention is without merit.
3. In ground 3 of the amended motion, complaint is made of the following charge of the court: "Now, gentlemen, I charge you on the question of accident, which counsel contends in this case, I charge you as follows: A person shall not be found guilty of any crime or misdemeanor committed by misfortune or accident, and where it satisfactorily appears there was no evil design or intention or culpable neglect." It is insisted: that the words "which counsel contends in this case" was an intimation of opinion by the court that the defense of accident was not involved, was the equivalent of instructing the jury that the court would not have charged them on the law of accident except for the request of counsel, and was calculated to impress the jury that the court did not have any faith in this theory of the defense; that the charge on the law of accident was not sufficiently clear; that, where the judge undertakes to charge on a defense presented by the defendant's statement, he must charge fully, fairly, and clearly, and apply the charge to the contentions of the defendant.
A failure of the court to charge on any defense made solely by the defendant's statement, as is true in this case as to accident, in the absence of a written request, is not error. Baker v. State, 111 Ga. 141 (2) ( 36 S.E. 607); Turner v. State, 190 Ga. 316 (3) ( 9 S.E.2d 270). And where the trial court has clearly charged the law of accident, it is not error, in the absence of a written request, for the court to fail to instruct the jury that, if they believe the killing was an accident as contended by the defendant, they should return a verdict of not guilty. Neal v. State, 151 Ga. 367 ( 106 S.E. 906). The charge as given was not subject to any criticism urged.
4. In ground 4 of the amended motion, exception is taken to the following charge: "Now, gentlemen, the defendant, Ernest Smith, enters upon this trial with the presumption of innocence in his favor, and the presumption attends him throughout the trial until and unless the State proves his guilt to a moral and reasonable certainty and beyond a reasonable doubt. If the State has thus proven his guilt, then that removes the presumption of innocence and you would be authorized to convict him." It is contended that the charge was injurious to the defendant, because it was not a correct statement of the law since the presumption of innocence attends the defendant throughout the trial; because the presumption of innocence is in the nature of evidence which the jury is bound to consider through the entire trial, and such evidence is not to be discarded as soon as the State has produced evidence tending to prove the guilt of the defendant.
This court has repeatedly held that where a killing with a deadly weapon is proved to be the act of the defendant, the presumption of innocence is removed and the burden is then upon the defendant to justify or mitigate the homicide, unless the evidence offered by the State shows justification or mitigation. Vann v. State, 83 Ga. 44 ( 9 S.E. 945); Lewis v. State, 90 Ga. 95 ( 15 S.E. 697); Dorsey v. State, 110 Ga. 333 ( 35 S.E. 651); Williford v. State, 121 Ga. 173 ( 48 S.E. 962).
In this case the State's evidence tended to establish an unprovoked, unjustifiable, and brutal killing of the deceased by the defendant. It was a question of fact to be determined by the jury whether or not the State's evidence had overcome the presumption of innocence, and whether or not the defendant's statement showed justification or mitigation. The charge was not erroneous for any reason assigned.
5. In ground 5 of the amended motion, it is contended that the court erred in failing to charge the jury that, if they believed from the evidence that there was testimony of an accomplice to the alleged crime, before they would be authorized to convict the defendant they would have to find that there was other testimony or corroborating circumstances tending to connect the defendant with the crime, independent of the testimony of the accomplice.
It is unnecessary to express any opinion as to whether or not the State's evidence tended to establish that Sylvester Byrd was an accomplice of the defendant. Assuming that there was evidence that would have authorized a jury to find that he was an accomplice, the State did not rely solely on the evidence of the alleged accomplice to connect the defendant with the offense, and the defendant in his statement admitted the killing and claimed that it was an accident. It was not incumbent upon the court in this case to instruct the jury on the law of corroboration of an accomplice without a request to do so. Robinson v. State, 84 Ga. 674 ( 11 S.E. 544).
6. Ground 6 of the amended motion for new trial attacks the charge of the court as a whole, it being contended that, while the charge contains abstract principles of law applicable to the case, it does not in any way attempt to apply such correct abstract principles.
The charge as given fully covered the principles of law involved, and the only obfuscation therein gave the defendant the benefit of favorable principles of law to which he was not entitled. If further elaboration of the charge was desired, a timely written request for such instructions should have been submitted.
Judgment affirmed. All the Justices concur, except Bell, J., absent on account of illness, and Wyatt, J., who took no part in the consideration or decision of this case.