In Dowdell v. State, 200 Ga. 775 (38 S.E.2d 780), it is said that a ground of a motion for a new trial in the following language, "movant contends the court erred in charging the jury on the law of mutual combat, when the evidence and the defendant's statement did not warrant it," raises no question for determination. The Dowdell case is controlling in so far as this special ground is concerned.Summary of this case from Roberts v. State
JUNE 5, 1946.
Murder. Before Judge Mallory C. Atkinson. Bibb Superior Court. February 23, 1946.
Earl W. Butler, for plaintiff in error.
Eugene Cook, Attorney-General, Charles H. Garrell, Solicitor-General, and Rubye G. Jackson, contra.
1. Where the defendant voluntarily pointed out to a person the place where the homicide occurred; and that person testified that the place so pointed out to him was between a certain road and named streets intersecting a designated highway, venue was sufficiently proved by the State when another witness testified that all of the territory between the named road and streets was in the county where the case was being tried.
2. In legal contemplation one may form the intent unlawfully to kill, do the killing instantly, and regret the deed as soon as it is done, and yet be guilty of murder. Therefore a charge that if malice "enters the mind of the slayer the moment before he fires the fatal shot or strikes the fatal blow or inflicts the fatal wound, that is sufficient," is not erroneous.
3. A ground of a motion for new trial must be complete within itself, and other parts of the record will not be looked to for the purpose of making the ground certain or definite. A ground in a motion for new trial which complains that the judge charged the jury on the law of mutual combat without stating at least in substance, the charge as given, raises no question for determination.
4. The evidence authorized the verdict.
No. 15486. JUNE 5, 1946.
Ethel Dowdell was convicted in Bibb Superior Court of the murder of Ulysses Brown, with a recommendation for life imprisonment. She filed a motion for new trial on the usual general grounds, and later amended it by adding three special grounds. Her motion, as amended, was overruled and a new trial refused. The exception here is to that judgment.
The evidence for the State, while conflicting in some particulars, made this case against her: Both she and the deceased were married, but not to each other. The defendant's husband was a soldier overseas. The deceased operated a taxicab in the City of Macon, and for some considerable period of time just prior to the homicide he and the defendant had, both day and night, been frequently seen riding together in his taxicab. According to the testimony of one of the State witnesses, their relations had been wholly improper. The defendant and the deceased in the course of their "affair" often quarreled, and on several occasions the deceased "beat her up." He had been warned by some of his friends to stay away from the defendant and to "let her alone," and had been told that she would kill him. About two months before the homicide, the defendant was said to have wounded the deceased's arm with an ice pick. The deceased said that a jack flew up and hit him, but when the defendant was asked about it, she laughingly said: "The next time he jumps on me I am going to kill him." He very frequently got money from the defendant to pay his outstanding checks; and did not make enough money from operating his taxi to pay his bills. The wife of the deceased had tried to break up the affair between him and the defendant. On one occasion she got after him with a knife while he was in company with the defendant. On the night the deceased was shot, he had carried the defendant, a soldier by the name of Charlie Pace, and Rosa Lee Cook to a night club in Macon where he left them with the understanding that he would return for them. While at the club, the three had something to eat, some of them danced, and the soldier had purchased some whisky. He drank some of it and two bottles of beer and was "high" when he left the club. The deceased returned to the club. Some of the witnesses for the State said that he came in the club. The soldier could not remember whether he did or not. One witness for the State, John Josey, said that he saw the party of four coming out of the club that night, and that the deceased was beating the defendant over the head with a flashlight. The soldier and Rosa Lee Cook, who said that they were present at that time, denied this. The defendant and the deceased about the time they were leaving the club had some "words" about another girl with whom the deceased was seen talking. He insisted that she was a "passenger;" the defendant thought that she was a "girl friend." This started an "argument." The deceased, the defendant, the soldier, and his girl friend, Rosa Lee Cook, all left the club together in the taxicab of the deceased; and, after some passengers had been delivered to different places in the city, the four drove some distance out of the city into the woods. While the four were in the cab together, the deceased and the defendant again started "arguing" about the girl, and the deceased told the defendant that he was going to beat her up. Rosa Lee Cook wanted to go home, but the soldier wanted to find them a room. After riding around for some time, the car stopped in the woods. The soldier and Rosa Lee Cook got out of the car and went just back of it. The soldier said that they went fifteen or twenty feet back of it, and had been there talking two or three minutes when they heard a pistol fire, and on returning to the car immediately saw that the deceased had been shot and was standing on the ground by the car, on the opposite side from the driver's seat. Rosa Lee Cook said that they went back of the car three or four feet, and had been standing there talking three or four minutes when the pistol fired, and when they immediately returned to the car, the deceased was sitting under the steering wheel and fell out of the car on his face when the door was opened. Neither of these two witnesses for the State heard anything to indicate to them that there was any trouble between the deceased and the defendant from the time they left the car until the shot was fired. Immediately after they returned to the car, until the deceased stated in the presence of the defendant that she (defendant) had shot him, to which statement the defendant made no reply. Both the soldier and Rosa Lee Cook on their return to the car saw a pistol. They were not certain whether the defendant had it in her hand or whether it was on the seat of the car. Before they reached the hospital, the defendant put it in the glove compartment of the car. The deceased was placed in the rear seat of the taxi by the soldier and the defendant, and was carried to a Macon hospital. After being shot, the deceased lived some three or four days before his death, which occurred on September 4, 1945. He left or escaped from the hospital after being shot, was promptly returned, talked with John Josey, but made no statement, so far as the record shows, as to the circumstances of the shooting. When the four arrived at the hospital, which was after midnight on the night of the shooting, the defendant, the soldier, and Rosa Lee Cook were questioned by R. S. Aaron, a member of the city police force. The defendant told this officer, who was later a witness for the State, that the deceased had been shot by some passenger, whose name she did not know, but they had a misunderstanding about what the passenger owed for taxi fare and the deceased was shot by him. This officer found a pistol in the glove compartment of the car in which they came to the hospital. The soldier told him that it was there. The pistol had recently been shot. The officer talked with Rosa Lee Cook in the absence of the defendant, and when he told the defendant that Rosa Lee had said that the defendant was the one who shot the deceased, she replied "Yes I shot him." The defendant voluntarily agreed to go with the officers to point out the place where the shooting occurred, and officer Aaron with respect to this testified: "We went to Crutchfield's store and turned to the left, and went out beyond those houses a half or three quarters of a mile to a little clump of bushes on the left of the road. That is located on the River Road. I saw the car tracks there. I saw where the car tracks went in and came out. The place that I have been talking about that Ethel Dowdell showed me, it is to the left on this side of the River Road just about the distance of here to the back of Mr. Garrett's office, something like sixty or seventy feet, back towards Shirley Hills. That is before you get to where these streets from Shirley Hills go into the River Road, between the Clinton Road and these streets in Shirley Hills." This witness also testified that he had examined the defendant and her clothing. He found no bruises on her and no evidence indicating that she had been choked. Her dress had two torn places in the back — one about eight inches long and the other not quite so long. The State called a Mr. Massey as a witness, who testified that he knew where the line between Bibb and Jones Counties is located on the River Road. He did not know, nor had he ever been shown where the shooting occurred, but stated: "All that territory between the Clinton Road and where these streets go into the Clinton Road is in Bibb County and a good distance to the right of the road going up where the road comes out from Shirley Hills. From where the streets from Shirley Hills and the road intersect the River Road, it is a short distance on down the River Road to the county line. All that territory between the Clinton Road and where these streets intersect is well in Bibb County, Georgia." On cross-examination, this same witness testified: "I do not know where the trouble happened. I have never been shown the place, according to the evidence. I can not say whether the Jones County line is not far from Mr. Peeler's place. If it is close to the fork where you turn off at Small Green's store and the paved road that goes by Twin Pine Apartments, it is not far from there to the county line." According to testimony of L. H. Chapman, Coroner of Bibb County, he was present in the office of the Solicitor-General, Mr. Garrett, on September 4, 1945, when the defendant freely and voluntarily gave this version of how the homicide occurred: "We parked out there in the woods, and that Ulysses Brown came around on her side of the automobile and had her down in the car beating and choking her, and she was trying to get him off with her feet and hands, and had her down in the car, and she reached up there and got the pistol and shot him." When asked by Mr. Garrett if she could give any explanation as to the course the bullet took, she replied: "She didn't know why the bullet took the course it did." The doctor who examined the deceased and cared for him after being shot testified that death was caused by the pistol-shot wound inflicted on him, which passed entirely through both lungs. The bullet entered the mid-section of the collar bone in the first interspace and came out at the tip of the scapula, going directly through both lungs. There were no powder burns on the clothing of the deceased. The defendant introduced no evidence, but in her statement gave this version of the homicide: "This man, Ulysses Brown, he taken me and Rosa Lee and the soldier out to the Cotton Club, and me and the soldier and Rosa Lee got out. This man, Ulysses Brown, and me and Rosa Lee and the soldier, we went to the Cotton Club, and me and Rosa Lee and the soldier got out and we went up to the dance and we stayed up there, I reckon three or four hours, it might have been longer. He told us he was coming back for us and he came back, I don't know exactly what time it was, but he came back for us. He picked up a passenger over from the Cotton Club, and he taken him to Tindall Heights, and he taken the passenger to Tindall Heights and then he went on back to Broadway, and he said, `I will take you all home in a few minutes,' and he picked up another passenger and taken him to Fourth Avenue in Pleasant Hill, and he carried us on out into the woods and Rosa Lee and the soldier were sitting in the back seat, and he cursed and he said, `This is where the . . will come off,' and he came on where I was sitting at, he opened the door and jumped on me and started beating me all in my face with his fist, and he laid across me and he started choking me and he started back around the car, and he said, `I promised to kill you,' and he cursed again, he said a real bad word, he said, `I promised to kill you, you son-of-a-b----' and he started back around the car; I didn't know what he had in his hand, and when he got as far to me as to the right out there, I didn't know what he had, and I looked up in the pocket of the car and I got the pistol and shot him. He told me that he was going to kill me. I didn't know what he was going to do to me. He had been always beating me and taking my money, I didn't drink whisky but he made me drink whisky, and he would take my money, and sometimes I would go to sleep and I would wake up and I would not find any money or nothing at all, it would be gone. I would get my checks cashed and go to the post office to put it in there. He would not ask me to get in the car, and if I would not get in there, he would make me and he would take me in the woods and jump on me. He would keep my money and then he would get somebody to go for whisky and make me drink, carry me in the woods and made me drunk, and he would then jump on me and beat me, and he has come over to my house and jumped on me when my mama and papa would be gone to work. He has come in my house and jumped on me. I have got a baby, he is a year and four months old. I have nobody to attend to my baby but my mama. My husband has been overseas a year and seven months."
1. It is contended that the venue in Bibb County, where the case was tried, was not established as required by law. This contention is without merit. No evidence was offered to show that the offense was committed elsewhere. The defendant went with a member of the Macon city police force to a point off the River Road and pointed out to him the place where the shooting occurred. This officer by his testimony located the place pointed out as being between the Clinton Road and the streets in Shirley Hills which intersect the River Road. A deputy sheriff of Bibb County testified that all of the territory between Clinton Road and the streets from Shirley Hills which intersect the River Road is well within Bibb County. The facts here on the question of venue are very similar to those in Rider v. State, 196 Ga. 767 (3), 776 ( 27 S.E.2d 667). In the Rider case the prosecutrix while testifying for the State located the place where the offense was committed as being in a hollow between a named person's residence and the river. A deputy sheriff, who heard the testimony, testified that all of the territory between the named points was in the county where the case was being tried. This court held that the evidence there was sufficient to establish venue. There was no evidence in the instant case which warranted even a bare conjecture that the offense was committed elsewhere, and the venue was sufficiently established. See Womble v. State, 107 Ga. 666 (3) ( 33 S.E. 630); Lee v. State, 176 Ga. 215 ( 167 S.E. 507).
2. By special ground 2 it is insisted that the court erred in charging the jury as follows: "Malice in its legal sense is not necessarily ill-will or hatred. It is the unlawful, deliberate intention to kill a human being without justification or mitigation or excuse, which intention must exist at the time of the killing. It is not necessary, however, that this unlawful, deliberate intention should exist for any particular length of time before the killing. If it enters the mind of the slayer the moment before he fires the fatal shot or strikes the fatal blow or inflicts the fatal wound, that is sufficient." Legal malice is not ill-will or hatred, but an unlawful intention to kill without justification, excuse, or mitigation. To make a homicide murder, malice must exist at the time of the killing. McMillan v. State, 35 Ga. 55. In the McMillan case — where the court charged, "It was not necessary to show that malice had existed any length of time previous to the commission of the offense, but there must be malice to constitute the offense, which might have arisen simultaneously with the offense," — this court approved the charge. In Bailey v. State, 70 Ga. 617, this court approved the following charge: "It is not necessary that the deliberate intention to take life should exist for any particular length of time before the killing; that if it enters the mind of the slayer the moment before he fires the shot, that is sufficient; it is deliberate, intentional, at the time he makes up his mind to shoot, and if it exists only that length of time, it is sufficient in law." Again in Malone v. State, 77 Ga. 767, 771 (3), in discussing malice the court held: "That it moves him at the time of the killing necessarily involves the idea that he had the malice before; and a moment before is long enough aforethought to make the crime of murder." In legal contemplation one may form the intent unlawfully to kill, do the act instantly, and regret the deed as soon as it is done, and yet be guilty of murder. Cone v. State, 193 Ga. 420 ( 18 S.E.2d 850); Roberts v. State, 3 Ga. 310; Cook v. State, 77 Ga. 96; Weeks v. State, 79 Ga. 36 ( 3 S.E. 323); Perry v. State, 102 Ga. 365 ( 30 S.E. 903); Godbee v. State, 141 Ga. 515 ( 81 S.E. 876); Coggin v. State, 147 Ga. 53 ( 92 S.E. 882); Goolsby v. State, 147 Ga. 169 ( 93 S.E. 88); Crawford v. State, 149 Ga. 485 ( 100 S.E. 633). There is no merit in the attack here made upon the charge, and it was not error to overrule the motion on that ground.
3. Special ground 3 is as follows: "Movant contends the court erred in charging the jury on the law of mutual combat, when the evidence and the defendant's statement did not warrant it. The defendant, movant here, contended upon the trial that she shot deceased in self-defense under the theory of reasonable fears. The evidence for the State was, according to the contentions of counsel for the State, that the defendant was guilty of murder. The evidence and defendant's statement particularly and peculiarly supported the defense that the defendant shot in self-defense, under the fears of a reasonable woman; but did not support the theory of voluntary manslaughter as related to mutual combat. Movant contends that, since the defense was based exclusively on the principle of killing under the fears of a reasonable person, and since there is no evidence or circumstances in the record in this case showing any mutual combat involved, and since said charge on mutual combat was prejudicial and harmful to movant, in that it contained an expression of opinion on the part of the court that such was involved, and this was an intimation of opinion by the court that defendant mutually agreed to fight deceased, when there was no evidence to support such an opinion in the record in this case. Movant contends that this charge was very harmful and prejudicial to movant and that same demands a new trial."
It is insisted that this ground of the amended motion does not sufficiently assign error because of incompleteness and should not be considered by this court. The rule that the assignment of error must be complete within itself applies to an assignment of error based on the giving or refusal of instructions. Exceptions based on the giving of instructions should point out the particular portion of the charge objected to and supposed to be erroneous, and it has been held that an appellate court will not consider an assignment of error based on the giving of an instruction, if the assignment does not quote in so many words the portion of the instruction complained of. 3 Am. Jur. 298, 299, § 711. There is no complaint that the portion of the charge which is complained of was not a correct statement of an abstract principle of law, but it is insisted that this instruction was not applicable to the contentions of the parties and the facts of the case. Thus, to determine whether or not such a charge was erroneous, it becomes necessary for the court first to examine the charge as a whole to see that the instruction complained of was actually given, and then the entire brief of evidence to determine its applicability, if so given. Over and over again this court has held that a ground of a motion for new trial must be complete within itself, and other parts of the record will not be looked to for the purpose of making the ground certain or definite. Harrison v. Lovett, 198 Ga. 466 ( 31 S.E.2d 799); Jones v. Jones, 196 Ga. 492, 497 ( 26 S.E.2d 602); Fidelity Casualty Co. v. Geiger, 142 Ga. 438 ( 83 S.E. 92); Daniel v. Schwarzweiss, 144 Ga. 81 ( 86 S.E. 239); Bowen v. Smith-Hall Grocery Co., 146 Ga. 157 (4) ( 91 S.E. 32); City of Jackson v. Wilson, 146 Ga. 250 (4) ( 91 S.E. 63); Pepper v. Pepper, 169 Ga. 832 (2) ( 152 S.E. 103); Lewis v. State, 136 Ga. 355 (4) ( 71 S.E. 417); Brock v. Brock, 140 Ga. 590 ( 79 S.E. 473); Elliott v. Gary, 153 Ga. 665, 666 (2) ( 112 S.E. 900). In Lewis v. State, supra, this court said: "One ground of the amendment to the motion for a new trial is as follows: `Because the court erred in charging the jury on the subject of conspiracy, as set forth and recited in the charge, which was duly reported, approved, and filed as a part of the record in said case, and which is hereby referred to as part hereof.' Held, that, the charge excepted to not being copied, or its substance set forth in the motion or in an exhibit thereto properly identified, this ground presents no question for consideration by the court." In Brock v. Brock, supra, it was said: "A motion for a new trial which complains that the judge charged the jury on the subject of the impeachment of witnesses, without stating at least in substance the charge as given, raises no question for determination." In Elliott v. Gary, supra, it was held: "Another ground complains that `the court erred in charging the jury on the question of undue influence,' because the petition as amended set forth no specific acts constituting undue influence, and that there was no evidence to authorize a charge on the subject, and further that the instruction given `was tantamount to an expression of the opinion of the court to the effect that undue influence had been used, and left the jury to so find upon general principles, without sufficient evidence or pleadings.' The charge complained of is not set forth in the ground of the motion, and therefore it presents no question for decision." Mr. Justice Atkinson, speaking for this court in Harrison v. Lovett, supra (page 473), said: "Each ground of a motion for new trial must be complete and understandable within itself; and reference to other grounds, the brief of evidence, the charge of the court, or to other parts of the record, should not be required in order to understand assignments of error." Such rulings have been so often announced by this court that further citations are, we think, unnecessary. For lack of being complete within itself, this ground presents no question for consideration by the court.
4. The evidence authorized the verdict of guilty, and the general grounds of the motion for new trial are without merit.
Judgment affirmed. All the Justices concur.