APRIL 2, 1946.
Murder. Before Judge Humphrey. Jefferson Superior Court. December 22, 1945.
Roy V. Harris, J. Roy McCracken, Henry T. Chance, and B. J. Stevens, for plaintiff in error.
Eugene Cook, Attorney-General, W. H. Lanier, Solicitor-General, M. C. Barwick, and L. C. Groves, Assistant Attorney-General, contra.
The court did not err in rejecting the proffered hearsay testimony; but did commit error in refusing to charge specifically on voluntary manslaughter as related to a mutual intent to fight. As the case is reversed for the reason just stated, it is unnecessary to determine whether the statements made to the jury by counsel employed in the prosecution were improper and inflammatory as alleged, so as to require a new trial for that reason, since the trial court held them improper, and it does not appear that any such question will arise on another trial.
No. 15426. April 2, 1946.
STATEMENT OF FACTS BY JENKINS, PRESIDING JUSTICE.
In order to afford a clear understanding of the rulings made in the opinion, the following portions of the evidence are set forth. J. B. Stavely, a witness for the State, testified as follows. "I remember that Mr. W. J. Smith was killed on Saturday evening. On that afternoon I had a conversation here in Louisville with Mr. John Ed Todd up there in front of the Cooks Cafe; in that conversation he just asked me, well he had two quarts of wine, he kept on about giving me a drink and I went and took a small one with him, then he put in wanting me to carry him to Grange, and he said when he knocked Mr. Smith down out on the street one day that he thought he had killed him but he didn't, but he was going to get him, he didn't say he was going to kill him that afternoon, he said he thought he killed him and he was going to." Morris Walden testified for the State in part as follows: "I recall the afternoon that Walter J. Smith was said to have been killed at Grange, that was on Saturday, on that afternoon I ran a restaurant here in Louisville, during that afternoon Mr. John Ed Todd came into my place, he came in there two or three times, maybe four, I wouldn't say. The first time he came in, I had a blackjack hanging up there in my place, which I bought from Mr. Todd away back when he went off to Alabama or left, and I paid him $1.50 for it; he came back there that evening and told me he wanted that blackjack back; and I told him, `I can't let you have it, I don't want to sell it.' As to whether he said what he wanted with it, he told me, he says, `There is a little work I have got to do, I want to borrow or buy it;' and I says, `You can't get it neither way;' and he says, `I will give you $5 for it;' and I says, `I ain't going to let you have it, Ed, you don't need it anyhow;' and he said he had a little work he wanted to do and he walked on out." J. A. Jones, testified for the State in part: "I first saw Mr. John Edward Todd that afternoon when he got out of a car in front of Mr. Jim Kelley's house, that is when he first got to Grange; he came and approached this house from toward Louisville. That was I guess around five or six o'clock, about five o'clock in the afternoon I guess . . he got on a bicycle and rode around there for quite a bit, rode up to the front of my store and stopped and talked; I didn't remember just what was said, but he was riding around there for a good little bit on a bicycle, just around the crossroads there; when he quit riding the bicycle, he went back out to Mr. Kelley's, and I saw him out there standing around in the front yard." On cross-examination, he testified further: "When Mr. Smith first came to my store and asked me if I had seen Ed Todd, he talked to me just on the outside of the door; he was asking for Mr. Todd, and I told him that Mr. Todd had gone, I knew at the same time that Mr. Todd was out there then. Later, I went inside the store and Mr. Smith came inside the store and asked me about Mr. Todd again on the inside, and he wanted to know where he was; he told me he knew he was there, he did not say how he knew he was there. As to whether I tried to get him to go on home — I told him, I says, `Mr. Smith, you go on back to the house;' I says, `Ed Todd has already gone, you go on back to the house.' I said, he has been here but he has been gone about an hour. I told Mr. Smith to go on home and calm himself down, that Mr. Todd had gone; he told me he knew he was there, he had already told me that, and he told me he was looking for Mr. Todd. Mr. Smith lived right on the rear, back of the store in Grange. A man from up at his house could not see Mr. Todd riding around down there in the road, he could probably see somebody riding on a bicycle, but he could not tell who it was; but he came in my store after Mr. Todd had been riding around on a bicycle, and he came asking where Mr. Todd was, and I told him he had gone; then he went inside the store and he told me he knew he was there, and I tried to get him to calm down and go home. He had a gun in his pocket at the time; as to what kind of a gun, it was just a little old pistol with about two inches of the barrel sticking out of his left-hand hip pocket. He did not take my advice and go home and calm down; instead of doing that, he went out of my store after standing around talking a while and went on across the street, he went back to the front door and stood there a little bit and then went on across the road."
Clarence Kelley, a witness for the defendant, testified as follows: "I know Mr. Ed Todd, we are first cousins, I knew Mr. Walter Smith. I was at Grange the afternoon that Mr. Smith was killed; it was something like right about an hour by sun that afternoon when he was killed, the sun was about an hour high. The first time I saw Mr. Walter Smith that afternoon, he was in Mr. Johnny Jones' store; I did not hear any conversation between him and anyone else in the store, I did not see Mr. Smith when he came up to the store. As to whether I saw Mr. Ed Todd, me and Ed Todd was sitting out there at my daddy's on the porch. I don't know when Mr. Smith came to the store, but me and Ed was sitting out there at my daddy's on the porch before I went to the store. Ed Todd's condition was like any normal person so far as I know; he came up to my daddy's house, I sat there on the porch and talked with him. As to what he did after that, well we went out, started out to the store, out to Jones' store, me and Ed Todd, and whenever we got in say eight or ten steps of Jones' store, J. T. Kelley stepped right in front of Ed Todd, and Ed Todd stepped back, he made about two more steps, and Hartwell Williford stepped right in front of Ed and stopped him. I don't know what was said, but Ed stopped and he spoke and Ed turned and went right back by me; I don't know where he went, the next time I saw Ed Todd he was going back in the direction of the store, he was out in the edge of the road. I had a talk with him then, I went out there and told him, I says, `Ed, don't go to the store,' and he went in the direction of Wilcher's store; he walked over there; I motioned in the direction of Wilcher's store, then he walked over there. I didn't tell him why to go over there. As to why I told him to go over there, well Hartwell had already told me there was going to be trouble up there, and that Mr. Smith is in the store, and I told Ed to go across to Mr. Wilcher's store and he did go across to Wilcher's; when he got over to Mr. Wilcher's, he walked across in the front and got over to the far edge of the cement and stood right there. I saw Mr. Smith after that; the next time I seen Mr. Smith, he come to the door and stood there in the door of Johnny Jones' store, he stood there in the door and looked straight across the street toward the other store, and he stood there for two or three minutes looking straight across; then after that he walked out and started towards Eddie, and when he got some three or four feet from the edge of the cement, Eddie told him, he says, `Mr. Smith, you are hunting trouble, go on;' and Mr. Smith stepped up on that cement and he made some remarks, I don't know what he said, and he made for his gun, and he got his gun by the barrel, but he did not get it out of his pocket. As to whether he ever got it out of his pocket — he was coming out — Eddie says to him, he says, `Mr. Smith, you are hunting trouble, go on;' as to what happened then, well as he got about two steps; as he was getting his gun, Eddie pulled and fired, Eddie fired after Mr. Smith tried to get his gun out." Hartwell Williford testified for the defendant: "I was at Grange Saturday afternoon in June when Mr. Smith was killed; I had been to Louisville that afternoon, and on my way back home I came to Grange; I was just going around first one place and then another there at Grange; I stopped at Mr. Jones' store; I did not see Mr. Walter Smith there then, I did not see him during the afternoon until he came up there and asked for Ed Todd, that was some time probably three quarters of an hour or an hour by sun; I was at Johnny Jones' tank putting two quarts of oil in my car and putting some air in my front tires; I finished up putting the air in my tire when Mr. Smith walked up; my car was headed north right in front of Mr. Jones' store, the tank and oil was right in front of the store. Mr. Smith came up there, he walked by me, and I was standing I guess in three or four feet of Johnny Jones, and he asked Johnny Jones was Mr. Todd there; and he said, `No,' and he said, `Well, I want to find Ed Todd;' he had a gun in his pocket then, I saw it; and he said he wanted to find Ed Todd, then Mr. Smith turned and walked on in Johnny Jones' store, and I asked Johnny there, just like some folks will, I says, `Who was that he asked for?' and Johnny says, `Ed Todd,' and he says, `Don't tell him where he was at;' we were both looking at Ed Todd then on Mr. Kelley's porch; Johnny turned and walked on back in his store behind Mr. Smith, and I happened to turn around and I seen Ed Todd get up out of Kelley's porch and start out that way, and I seen J. T. Kelley meet him and I told him to go and tell Ed to go back to the house, that Mr. Smith is looking for him and he might have trouble if you all get together; and so J. T., he met Ed and Ed didn't turn back right then, he come on there and met me and I told him; and he said. `All right,' and he turned and went on back towards the house, and whether he went to the house or not I don't know because I got in my car and drove around to Mrs. Mullins' store back of Mr. Wilcher's store; and I told Mrs. Mullins, if Mr. Smith and Mr. Todd got together, they are going to have trouble; and she says, `I am going to close up;' and when I got back around there, Todd was at the cement porch, out on the cement porch; when I saw him there, he was just standing there on the corner of the cement porch; I saw Mr. Smith and he was standing in Johnny Jones' store door; Mr. Smith stood there and talked to Mr. Tant some minutes, he is the boy that brought Todd up to Grange from Louisville. As to what he then did, well, in four or five minutes after I walked up there, he come over toward Mr. Wilcher's store, Mr. Smith did; and when he got near the cement wall, or brick wall of that porch, just as he went to step up, Todd says, `Mr. Smith, you are hunting trouble, you had better go on,' and he stepped up on the brick porch and made two or three steps toward Ed Todd and grabbed for his gun, Mr. Smith grabbed for his gun with his left hand — the gun was in his left hip pocket, he had his hand on the gun, he was trying to pull it out of his pocket, and that is when Todd shot him when he was trying to get the gun."
The defendant made in part the following statement to the jury: "I was in about ten feet of the store and met Mr. Kelley, and he says, `Don't go out there, Mr. Smith is in town and got his gun and hunting you;' and I says, `There ain't nothing about that,' and I walked on about ten feet, and we met that Mr. Williford, and he told me that Mr. Smith was there looking for me, and I turned and walked back to the corner of Wilcher's store; and standing there on a corner, a friend of mine came to me and says, `Old man Smith will kill you if you don't leave town,' and I couldn't leave town until the boy got ready to go, for I had about ten miles to go to get home; and he handed me a pistol, a 32 long pistol, and told me, he says, `Take this and don't let him hurt you.' I takened the pistol and put it in my right pocket, and didn't touch it no way until Mr. Smith come out of the door of the store, standing there on the corner under the left of the gas tank ten feet from it; and Mr. Smith come out of the door of the store, and looked right straight toward me and stopped and talked to a fellow two or three minutes, then he headed on toward me; when he got out to the middle of the street, then I seed him start to the store, and he went kinda siding toward me, and he come on up; when he got in about eight feet of me, I said, `Go back, Mr. Smith, I don't want to have any trouble with you, you are hunting trouble;' and he come on up on the porch there and turned and made two steps to the left towards me and reached for his gun with his left hand, he had his gun in his pocket with the barrel up, his pocket was tight, and he snatched at it one time before I went for mine; well, I reached with my left hand over here and grabbed my pocket and snatched for mine with my right hand and just did beat him, I just did shoot before he got his gun, he had got his gun and the barrel of it was sticking up out of his pocket, but I beat him to it, he had almost got it clear, and when he fell, his hand was on the gun with the barrel of it sticking up out of his pocket."
1. Error is assigned because the court erred in not permitting a witness to testify to a conversation had between the witness and the daughter-in-law of the deceased, in which the daughter-in-law recounted a conversation between herself and the deceased. The question propounded was, did she, referring to the daughter-in-law, "make any statement to you in reference to telling Mr. Smith [the deceased] that Ed Todd [the defendant] was at Grange that afternoon?" The answer would have been, "She told me that when she got up there Mr. Smith asked her if any of the Todds were down there, and she told him before she thought of herself that Ed was there." The Code, § 38-302, provides as follows: "When in a legal investigation, information, conversations, letters, and replies, and similar evidence are facts to explain conduct and ascertain motives, they shall be admitted in evidence, not as hearsay, but as original evidence." Hearsay when admissible, under this rule, derives its competency from the necessity of the case. If the fact that a conversation was had is all that is relevant or needed as an inducement to explain conduct, such as, for example, to account for an investigation by the witness, this court has held in Kelly v. State, 82 Ga. 441 (3), 444 ( 9 S.E. 171), that "It is more regular to admit only the fact that a conversation occurred, without going into the particulars of what was said." Where, however, in order to explain conduct, such as a subsequent investigation by the witness, the nature and character of the conversation itself is both relevant and necessary, the conversation will be admitted as original evidence. As illustrative of the propriety of admitting such a conversation. see Bryant v. State, 191 Ga. 686 (14), 720 ( 13 S.E.2d 820). In this latter case, flight by the defendant after the homicide was proven as a circumstance indicating guilt. The defendant sought to show that his flight was occasioned by another cause, to wit, a personal difficulty with an official of the plant where the defendant worked. The witness sought to testify that he was sent by the foster mother of the defendant to interview this official for the purpose of ascertaining if he, the official, would drop the charge against the defendant so that he could return home. In that case, the defendant's counsel offered to connect up this conversation with the foster mother, with the evidence as to the interview with the official, and with evidence that such information was reported to the defendant, and that the defendant remained away for that reason. This court held that the witness should have been allowed to show why he went to interview the official. In the instant case, the hearsay conversation of the daughter-in-law could not be treated as original evidence. If what the daughter-in-law may have told the deceased could be taken to have influenced the conduct, not of the witness, but of the deceased himself, proof of the conversation should have been made by the daughter-in-law. The court did not err in rejecting the hearsay testimony.
2. While the court charged on the law of murder, on the general law relating to voluntary manslaughter, and on justifiable homicide, error is assigned because, under the evidence, the judge should have charged the law of voluntary manslaughter as related to cases involving a mutual intention to fight. We think that the assignment of error on this ground is good. As the case will be tried again, we are particular to refrain from giving any sort of intimation as to any opinion on the merits of the case — that is, on whether the defendant was guilty of murder, whether the homicide was justifiable, or whether the defendant was guilty of voluntary manslaughter. We do say, however, that the jury would have been authorized to infer, under one view of all the facts and attendant circumstances testified to, that both of the parties were at fault in that, after a previous serious difficulty, there was manifested a mutual intention to fight. The evidence shows that just prior to the difficulty each was warned of the peril with respect to the other, from which fact and from the conduct of the parties, it was possible for the jury to infer that each was seeking the other, each with knowledge that the other had the intention to fight. The facts are quite similar in these respects to those set forth in Harris v. State, 184 Ga. 382 (1), 390 ( 191 S.E. 439). The jury could, however, have found, under this view of the testimony, that the killing at the time it occurred was actually brought about by a sudden and violent impulse of passion, and was not necessarily the direct result of a deliberate mutual intent to fight and kill. Under such circumstances, should the jury believe that such circumstances existed, the element of malice would be lacking, so as to reduce the offense committed to that of voluntary manslaughter. If the homicide should not be justifiable, a mutual intention to fight would not necessarily reduce the homicide from murder to voluntary manslaughter. There can be such a thing as a deliberate mutual intention to fight and kill, in which event a homicide resulting directly out of such mutual intent to kill is murder. In order to reduce an unjustifiable homicide from murder to voluntary manslaughter, even though it result from a mutual intention to fight, the killing must still result from that sudden, violent impulse of passion supposed to be irresistible. Dickens v. State, 137 Ga. 523, 530 (8) ( 73 S.E. 826); Bundrick v. State, 125 Ga. 753 (2) ( 54 S.E. 683). It is well recognized that, when a mutual intention to fight appears, and the circumstances are such as might permit the jury to find an absence of malice, and that the killing resulted from a sudden and violent outburst of passion, a charge of voluntary manslaughter as related to a mutual intention to fight is required, and this is true either with or without a request. Findley v. State, 125 Ga. 579, 583 (3) ( 54 S.E. 106); Butt v. State, 150 Ga. 302 (2) ( 103 S.E. 466); Waller v. State, 100 Ga. 320 ( 28 S.E. 77); Ison v. State, 154 Ga. 408 ( 114 S.E. 351); Buchanan v. State, 153 Ga. 866 ( 113 S.E. 87).
3. The case being reversed for the reasons set forth in the preceding division of the opinion, it becomes unnecessary to decide whether or not the judge abused his discretion in failing on two occasions to declare a mistrial on motion of the defendant, by reason of alleged improper and inflammatory remarks addressed to the jury by counsel employed for the prosecution in the case. This is true for the reason that the court instructed the jury as to the impropriety of such remarks, and there is no reason to suppose that a similar question will arise on another trial.
Judgment reversed. All the Justices concur, except Duckworth, Atkinson, and Head, JJ., who dissent.