NOVEMBER 13, 1941.
Murder. Before Judge Byars. Spalding superior court. August 23, 1941.
John H. Goddard and D. S. S. Walker, for plaintiff in error.
Ellis G. Arnall, attorney-general, F. E. Strickland, solicitor-general, E. J. Clower and C. E. Gregory Jr., assistant Jr., assistant attorneys-general, contra.
1. Both the corpus delicti and the perpetration of the alleged offense may be shown by circumstantial as well as direct evidence. In the instant case the evidence, direct and circumstantial, was sufficient to show death of the person alleged to have been killed, and that such death was the result of a wound or wounds inflicted by the defendant.
2. The charge to the jury on the subject of mutual combat was not erroneous for any reason assigned. It is not a good assignment of error on a portion of the judge's charge which states a correct principle of law applicable to the case, that some other correct and applicable instruction was not given.
3. It is only where a conviction depends wholly on circumstantial evidence that the judge is required to charge the law relating to such evidence, in the absence of a request. In the present case, the allegations of the indictment being supported in part by direct evidence, the omission to charge on circumstantial evidence was not erroneous.
4. A ground of a motion for new trial complaining "that the court erred in not charging the law of involuntary manslaughter," but not designating the particular grade of involuntary manslaughter as to which it is contended a charge should have been given, or stating any principle of law that was omitted, is too general and indefinite to raise any question of error for determination.
5. The evidence did not disclose any basis for a charge on the theory of misfortune or accident. If such defense was at all involved, it was presented only by the defendant's statement; and therefore the failure to charge thereon was not error, there being no request.
6. The evidence authorized the verdict convicting the accused of murder. It was not error to refuse a new trial.
No. 13944. NOVEMBER 13, 1941.
Charlie George Jester was indicted for the offense of murder in the alleged killing of James Gay by cutting and stabbing him with a "knife and other instrument of like kind" on June 15, 1941. He was convicted of that offense, without recommendation, and was sentenced to be electrocuted. His motion for a new trial, consisting of the general grounds and several special grounds added by amendment, was overruled, and he excepted.
The evidence pertinent to the contentions raised in this court was substantially as follows: Mary Hall testified: "I know the defendant, Charlie George Jester. I knew James Gay in his lifetime. Last Sunday was a week ago, James Gay was at my house, and Charlie George Jester came there. . . After James Gay had been there about fifteen minutes, I reckon, Charlie George Jester came in the front door and said `Come here, Shine.' He was talking to James Gay. He called him Shine twice, and James did not say anything the whole time he was calling him. So Charlie George Jester walked back to the front door, and he came back and said, `James Gay, come out here, I want to speak to you.' and James Gay got up and went out in the hall, and in a few minutes I heard Charlie George Jester cursing. I said to my husband, `They are going to fight,' and James Gay backed out of the hall and fell off the porch. James Gay was backing out of the hall and back on out and fell off the porch on a rock that we used for a doorstep. When I went to the door James Gay got up and pulled the knife out of his bosom. I did not see the actual cutting, the actual lick. Charlie George Jester was pursuing him while he was backing out of the hall and on to the porch. I at no time saw James Gay do anything to Charlie George Jester. I did not see James Gay with a pistol or any other deadly weapon during the time he was there. I did not see him with anything in his hand during the whole time. James Gay did not threaten him in any way. I just heard Charlie George Jester curse James Gay, and my husband told them to get out, and they backed on out the hall. This is James Gay's hat that he had on at that time. He got it cut like that during the fight. . . Both James Gay and Charlie George Jester had been to my house before that day. They were both good friends. They worked together. . . They did not fight in the hall. Charlie George Jester cut him in the yard. They were arguing in the hall, and I saw them backing out of the hall. . . I saw Charlie George Jester backing James Gay out of the hall. After they got out on the porch, out of doors, I went and called the law then. . James Gay pulled the knife out of his breast, like this [indicating]. I don't know how long he lived after that. They carried him to the hospital. . . I saw James Gay when he pulled the knife out of his bosom. He was pulling it out as I went to call the law. As to whether or not they were scuffling around in the yard a good deal, you can see where he cut his hat. He was trying to kill him. I don't know how long they fought, but long enough for me to start to call the law. . . When I got back there Charlie George Jester was trying to get the knife again. James Gay had the knife, pulling it out of his bosom. Charlie George Jester wanted to take the knife again, and James Gay threw it over toward a spicket in my yard, and my husband picked it up, and Charlie George Jester walked on away."
It seems that the witness referred to above as Mary Hall, and Willie B. Horton, were husband and wife, or that they lived together and referred to each other as such. Horton, as a witness for the State, testified as follows: "I know the defendant, Charlie George Jester. I knew James Gay in his lifetime. On Sunday, the 15th of June, this year, Charlie George Jester and James Gay both came to my house. James Gay came there first. He came to my house and into my room. About thirty minutes after James Gay got there, Charlie George Jester came there. When the defendant came there, me and James Gay and my wife were sitting in the front room. Charlie George Jester came to the front door and came on in the hall and to the hall door of my room and called to James Gay and said, `Come here, Shine, I wants to speak to you a minute,' and he didn't go, and then Charlie George Jester said, `No, I forgot, this is Mr. James Gay. Come here, Mr. James Gay.' Then James Gay said, `That's all right, I will come.' James Gay then went to him and stepped just outside in the hall, about like from here to the table there, from the door, and about that time my wife said, `They are arguing out there.' I said, `No, not arguing.' She said, `Yes, they are fixing to have a fight.' My wife started to the door, and I pulled her back, and I went out to ask them would they mind going out the door, if they were going to fight; and James Gay said, `You are not going to cut me, are you?' Charlie George Jester said, `Yes, I will cut you.' I said, `You all go outside,' and James Gay started out the door. James Gay went to turn around, and Charlie George Jester jerked the knife out of his pocket and as he got to the door James Gay reached back and picked up a box and slung it at Charlie George Jester. James Gay was walking back at that time. He was going away from the defendant. It was a little orange box. It looked like one for a little baby to sit on, there on the porch. Charlie George Jester was going on him at the time James Gay pitched the box at him, and was going on James Gay with a knife. James Gay kept backing until he backed off the porch. There is about that much drop off on the porch there, and James Gay fell backwards on the ground. Charlie George Jester followed James Gay on until James Gay fell off the porch backwards. James Gay did not have anything in the way of a weapon. When James Gay fell out on the ground Charlie George Jester stuck him with a knife, . . . with a pocket-knife. It was done so quick I really don't know where he stuck him. I saw the blood coming out. I don't know how many times he stuck him. I got excited about that time is the reason I don't know. I saw James Gay pull the knife out of his stomach, like that. He stuck James Gay in here one time, I know, because I saw James Gay pull the knife out, that is, in here around his heart. . . My wife, James Gay, and myself were sitting in my bedroom. I did not see Charlie George Jester coming across the railroad. The defendant lived about a block down the street from my house. That would be the way for him to go home was to pass my house. The defendant came in my house and called James Gay out in the hall. They stayed out in the hall and argued for about three minutes. I knew they were arguing, but I didn't know what they were arguing about. My wife was sitting down in the room with me. She heard them arguing. I did not see the knife when the defendant came in the house. I went out in the hall and told them to get out if they were going to fight, and both agreed to go out and fight. James Gay backed out of the house. He did not walk out with his back to the defendant. James Gay was backing out of the house, and he picked up a box and threw it at Charlie George Jester as he went by it, and then the defendant pulled out a knife. The length of the hall from my door was about six feet. I saw the knife when James Gay started backing out. When I told him to go out of the house to fight they agreed to go out and started out then. I saw the knife at that time. The defendant jerked the knife out, and I said, `Would you all mind walking out, if you are going to fight?' And as he started out he jerked the knife out. They were out on the ground fighting for about three minutes. I stood there and watched them. I did not attempt to separate them. I had three minutes in which to do it. They fought out there in the yard for about three minutes. I had three minutes to separate them, but I didn't do it, because it took me that long to make up my mind and get to them. I was standing in the front door. They were on the ground in front of the house. They were scuffling around a little out in the yard. I did not see the defendant when he knocked the knife out of James Gay's hand. I did not see James Gay when he cut Charlie George Jester across the face. I did not examine the defendant's hand to see if he was cut. I stood there and watched the whole thing. I don't know where my wife was during that time. They had a pretty bad fight out there. James Gay was not after the defendant. He did not have a chance. They were out there in the yard fighting for about three minutes, but James Gay did not have a chance to get at him though. James Gay was just able to get up and stagger back to the door. . . Charlie George Jester was doing the fighting. It was a one-sided fight. James Gay was down on the ground at the time he was cut by Charlie George Jester. The fight started in the hall. . . They started arguing in the hall."
Jim Smith testified: "Charlie George Jester came from across the railroad, and went on in the house to where James Gay was. I reckon it was about five or ten minutes, and I heard Charlie George Jester say. `God damn you, you have got to pay me.' I then looked down the hall, and James Gay was backing back. I am going to tell you just exactly how it was. James Gay was backing back, and Charlie George Jester was coming on him with a knife, and James Gay backed out on a little porch, and there was a little box sitting there on the porch, and James Gay pitched it at him, and Charlie George Jester knocked the box down and kept coming on him, and James Gay backed off the porch and fell backwards, and Charlie George Jester jumped on him and stobbed him, and he got up, and I heard James Gay say `Don't cut me,' and Charlie George Jester hit him in here [indicating] and said `God damn you, I will kill you,' and he did kill him. As to whether or not he cut him more than two times, I will say I saw these two places after he walked off. Both of them came up together. James Gay grabbed him, and both of them straightened up and stood up, and I walked over to them and put one hand on one of the boys and the other hand on the other boy, and I said, `Charlie George, turn him loose. You have done cut him. Let him go to a doctor.' When I pulled them apart James pulled the knife out of his side, and Charlie George Jester said, `Give me my knife.' James Gay threw the knife down, and Willie B. Horton picked it up, and Charlie George walked on off and said, `I will kill your folks if any of them comes up here.' James Gay walked on back to the door-facing, and I went to him and put my hand on him and said, `Why don't you go to a doctor? You are bleeding.' He did not say a word, and he stood there until he commenced to give away and went down to the floor. He did not die right there. He lay down and said, `Lord, have mercy.' Two or three more boys picked him up and got him in a car and said they were going to carry him to the hospital. They said they carried him to the hospital. I didn't go. He died at the hospital. . . James Gay did not have any weapon of any kind there on that occasion at any time. At the time that Charlie George Jester cut James Gay on the head and at this place [indicating] James Gay was lying flat of his back on the ground. James Gay fell back on the ground flat of his back when he stepped off the porch. . . Charlie George Jester did not kill him outright, but he fixed him so that he would die. They did not scuffle out on the ground but just a few minutes. Charlie George just hit him twice."
The defendant stated that he was on his way home, and thought he would stop by Mary Hall's. There he saw James Gay, who asked about a debt which he claimed the defendant owed to him, and started arguing. As to what happened afterwards, the defendant stated: "I was whittling on a stick. He [Gay] snatched the knife out of my hand and cut me across the finger, and we started scuffling and he dropped it and I got it, and he stepped back and got a box, and as I raised up he hit me across the head, and before I got straight he grabbed me up, and we went to scuffling out on the porch, and he stumbled and fell back, and his heels flew up and hit me in the chest, and I pushed his legs out of the way, and Willie B. Hall said, `You all stop fighting.' I then turned and went on around the house. I said, `He is trying to kill me.' I went on around the house and went on home. I didn't know he was cut. I didn't know I was cut at that time. We were scuffling. I was trying to defend myself. I didn't know there would be a fight. I didn't know he would jump on me; if I had, I would not have let him hem me up. I couldn't get out except by him. I didn't go in the house and jump on him. I was just trying to defend myself. He had me hemmed up and jumped on me. That is the truth."
1. Under the original or general grounds of the motion for a new trial, and the first special ground, it is contended that there was no proof of the corpus delicti, in that there was no evidence that James Gay died, or that, if so, he died from a wound inflicted by the defendant, or that his alleged death did not result from accidental or natural cause, or from his own act. There is no merit in these contentions. It is of course true that the burden was upon the State to prove the corpus delicti, and to show also that the defendant was the perpetrator of the alleged offense. Both of these elements, however, could be shown by circumstantial as well as direct evidence. Buckhanon v. State, 151 Ga. 827 (8), 830 ( 108 S.E. 209); Brown v. State, 10 Ga. App. 216 (2) ( 73 S.E. 33). The evidence was positive to the effect that the defendant not only cursed and threatened to kill Gay, but struck him twice with a knife, after which Gay "pulled the knife out of his bosom," one of the witnesses using the word "bosom," while the words "stomach" and "side" were used by other witnesses. One witness testified: "I saw James Gay pull the knife out; that is, in here around his heart." Another testified: "He [Gay] did not say a word, and he stood there until he commenced to give away and went down to the floor. He did not die right there. He lay down and said, `Lord, have mercy.' Two or three more boys picked him up and got him in a car and said they were going to carry him to the hospital. They said they carried him to the hospital. I didn't go. He died at the hospital."
It appears from the evidence that the difficulty occurred less than two weeks before the trial, and that all three witnesses who testified stated that they knew Gay "in his lifetime," implying thereby that he was dead at the time of the trial. He was "bleeding" at the time he was taken to the hospital. The further statement that he "died at the hospital," was not necessarily to be treated by the jury as hearsay, notwithstanding it had just been stated by the same witness that others carried Gay to the hospital and that the witness did not go. The jury could have construed this testimony as meaning simply that the witness did not go with those who carried Gay. Moreover, even if the witness never did in fact go to the hospital, and may have spoken only from hearsay as to the place where Gay died, it still does not appear as a matter of law that he was not speaking from his own personal knowledge as to the fact of death. "Where a witness testifies to a fact, the presumption is, in the absence of anything to the contrary, that he is testifying from his own knowledge." Shaw v. Jones, 133 Ga. 446 (3) ( 66 S.E. 240).
The evidence, direct and circumstantial, was sufficient to show death of the person alleged to have been killed, and that he died from a wound or wounds inflicted by the defendant.
2. Error is assigned upon the following charge to the jury: "The court instructs you that in case of mutual combat, if a person killed another in his defense, it must appear that the danger was so urgent and pressing at the time of the killing, that, in order to save his own life, the killing of the other was absolutely necessary; and it must also appear that the person killed was the assailant, or that the slayer had really and in good faith endeavored to decline any further struggle, before the mortal blow was given.
"Before the slayer can be justified, it must appear that he acted without malice nor in a spirit of revenge, that the deceased was the assailant, that in order to save his own life it was necessary to kill his adversary, or that he was under the pressure of other equivalent circumstances.
"A mutual intent to fight does not necessarily reduce the crime from murder to manslaughter. In order to do so, the killing must be the result of that sudden, violent impulse of passion supposed to be irresistible; for if there should have been an interval between the assault or provocation given and the homicide, of which the jury shall in all cases be the judge, sufficient for the voice of reason and humanity to be heard, the killing shall be attributed to deliberate revenge and be punished as for murder."
Movant complained that this charge was erroneous as being unsound as an abstract principle of law, and that it was prejudicial to the defendant, but more specifically that it undertook in the beginning to state the law applicable to mutual combat, whereas in effect it stated only the law applicable to justifiable homicide, and was therefore erroneous, confusing, and misleading; also that it was incomplete, in that it authorized the jury to find that a mutual intent to fight did exist, but "omitted any further instructions as to what grade of homicide the jury might find the defendant guilty of, should they find a mutual intent to fight followed by mutual combat."
This charge does not appear to be erroneous within itself or inapplicable, and there is no separate assignment of error on the failure of the court to give in charge any stated principle relating to mutual combat. It is not a good assignment of error on a portion of the judge's charge which states a correct principle of law applicable to the case, that some other correct and appropriate instruction was not given. Grant v. State, 152 Ga. 252 ( 109 S.E. 502). As a matter of fact, it appears in the record that the judge did, both before and after the quoted excerpt, instruct fully on the law applicable to voluntary manslaughter generally, although he did not in express terms state that passion aroused by mutual combat might reduce a homicide from murder to that offense. But regardless of this, the assignments of error do not show cause for a reversal. See Dickens v. State, 137 Ga. 523 (8), 530 ( 73 S.E. 826); Ison v. State, 155 Ga. 877 ( 118 S.E. 721).
3. It is contended that the court erred in not charging the law of circumstantial evidence. It is only where a conviction depends wholly on circumstantial evidence that the judge is required to charge the law relating to such evidence, in the absence' of a request. In the instant case the allegations of the indictment were supported both by circumstantial and direct evidence, and therefore the omission to charge on circumstantial evidence was not erroneous. Burnett v. State, 160 Ga. 593 (2) ( 128 S.E. 796); Spearman v. State, 184 Ga. 425 ( 191 S.E. 471); Ward v. State, 184 Ga. 566 ( 191 S.E. 916).
4. It is complained that "the court erred in not charging the law of involuntary manslaughter." This ground of the motion is too general and indefinite, in that it fails to designate the particular grade of involuntary manslaughter as to which it is contended a charge should have been given, and states no principle of law that was omitted. Drane v. State, 147 Ga. 212 (2) ( 93 S.E. 217); Williams v. State, 176 Ga. 372 ( 168 S.E. 5); Armstrong v. State, 181 Ga. 538 (3) ( 183 S.E. 67); Norris v. State, 184 Ga. 397 ( 191 S.E. 375); Kennedy v. State, 191 Ga. 22 ( 11 S.E.2d 179); Cornelious v. State, 193 Ga. 25 ( 17 S.E.2d 156).
5. It is complained that the court erred in not charging the jury on the law of accident or misadventure as a defense in criminal cases. There is no merit in this ground. The evidence did not disclose any basis for a charge upon such theory. If any issue as to misfortune or accident was at all involved, it was presented only by the defendant's statement; hence, the failure to charge thereon was not error, in the absence of request. Compare Thompson v. State, 191 Ga. 222 (5) ( 11 S.E.2d 795).
6. The other special ground is expressly abandoned. The evidence authorized the verdict, and the court did not err in refusing a new trial.
Judgment affirmed. All the Justices concur.