41 Ga. 484 (Ga. 1871), Hill v. State

Citation:41 Ga. 484
Opinion Judge:LOCHRANE, C. J.
Party Name:FAYETTE HILL, plaintiff in error, v. THE STATE OF GEORGIA, defendant in error.
Attorney:Dr. W. M. HARDWICK, sworn for the State: DR. DAVID BAYLEY, sworn for the State, said: JOSEPH MANN, sworn for the State, said: MILES BASS, sworn for the State, said: HESTER WORMACK, a negro, sworn for the State, said: TAYLOR EDWARDS, negro, sworn for the State, said: FLY CRAWFORD, negro, sworn for...
Court:Supreme Court of Georgia

Page 484

41 Ga. 484 (Ga. 1871)

FAYETTE HILL, plaintiff in error,


THE STATE OF GEORGIA, defendant in error.

Supreme Court of Georgia.

January, 1871

When a party has been arraigned upon a good bill of indictment, and the jury empanneled and charged with the case, and the Solicitor General altered the indictment in the presence of the foreman and some of the grand jury:

Held, That a motion for verdict of acquittal ought not to have been granted by the Court, although the act of the Solicitor General was unauthorized and improper in the premises.

2. Under the Code of this State, all exceptions to the indictment for form, or for matters that may arise by special demurrer, or by plea in abatement or in bar, must be made in writing preliminary to the trial, and if not made at the proper time, are to be held as waived in contemplation of law.

3. When the Judge below caused the witnesses to have their testimony read over to them, to be corrected, if necessary, in presence of the jury, or where the Judge himself suggested corrections of what had been sworn:

Held, That this practice is not error, and that it is the right and privilege of the Judge below to direct the progress of the trial, and see that the evidence is correctly taken down.

4. When a dissolution is approaching, and the dying man has lost hope of life, and his mind feels the full consciousness of his condition, the solemnity of the scene gives to his statements the sanctity of truth, and such dying declarations, when made, should be admitted in evidence and considered by the jury, under the charge of the Court upon the law applicable to them.

5. Leading questions, under section 3809 of the Code, are within the discretion of the Judge, for the purposes of justice, and when the presiding officer of the Court permits them to be propounded, this Court will not interfere to limit or restrict the Judge in the exercise of his legal discretion.

6. If a woman cohabit with a man, under his promise to marry her legally, but finding that he does not take legal steps to do so, quits him and again cohabits with him, she is not his wife and is a competent witness on his trial for crime. (R.)

7. When the jury, after retiring to their room, requested the Judge to recharge them, upon some point of law in the case, and the Judge summoned them into Court, and in the presence of the counsel and accused complied with their request:

Held, That such act was not error, but was proper in the discharge of his official duty.

8. When the Court, in a case of homicide, charged the jury that, when a killing had been committed, the law presumed malice, and it was incumbent upon the defendant to show there was no malice:

Held, That this charge was a well settled rule of law.

9. When the defendant's counsel requested the Court to charge all the grades of homicide, and the facts showed that the case did not rest for the defense upon all the matters of law governing homicide:

Held, that it was not error in the Court to refuse the charge as requested. It is only in cases where the facts require such charge that it should be given.

10. When the omission to give a charge by the Court is supplied by the Judge giving a more favorable charge than the law of the case authorized:

Held, That this omission was not error.

11. When the facts of the case show that the prisoner shot at the deceased and killed him, although no motive of anger or provocation is proven, the law will imply malice from such wanton and reckless trifling with human life, and when the evidence sustains the verdict of the jury, this Court will not set aside their finding.

Criminal Law. Evidence, etc. Before Judge CLARK. Sumter Superior Court. August Special Term, 1870.

Fayette Hill was indicted for the murder of John Wormack in said county, on the 1st of August, 1870, with a ball shot from a pistol. The indictment, as originally written, charged the assault on said day in usual form, and in charging the death said Wormack " within one year from the day first aforesaid," died. Before the trial, but when did not appear, Mr. Whiteley, the Solicitor General, had stricken out said quoted words and in lieu of them had interlined " " then and there." After the defendant had been arraigned and had pleaded not guilty, after the jury had been empannelled and sworn and the Solicitor General had " opened the case" to the jury, counsel for defendant moved for a verdict, because of said alteration in the indictment, and proposed to prove that this alteration had been made after the bill was found and returned into Court, and without the authority and consent of the grand jury, or any twelve of them. The Solicitor said he made the alteration in the grand jury room, in the presence of the foreman and others of the grand jury, and with their consent; that he could not say how many grand jurors were present, nor that twelve were present. Nothing else was offered on this point. The Court overruled the motion and ordered the trial to proceed.

The witnesses pro and con were then examined and their testimony was as follows:

Dr. W. M. HARDWICK, sworn for the State: I am a practicing physician. I knew John Wormack in life. I was called to see him some thirty-six hours after he was shot. The ball entered just below the shoulder-blade and came out in the breast. It was a gun-shot wound. I cut out the ball. Never saw weapon— can't say whether it was a gun or pistol— it may have been a rifle or pistol. When I first saw him, deceased seemed to be so quiet I thought he was doing very well, except as to his pulse which was very feeble and quiet. In consequence of his condition otherwise, I at first thought the condition of his pulse might be attributed to the shock on his nervous system. I came to the conclusion that the ball may have struck a rib and passed around the body, and not struck any vital part, and more than that there was no hemorrhage from the lungs. On my second visit, the second day afterwards, he was in such a condition I was afraid he would die. Negroes had employed Dr. Bayley, and in waiting for me did not send for me until second day. On my visit at that time his pulse was still very feeble and had considerable fever; my conclusion was he would die. I think, from what I saw in my attendance on him, he died from the wound. I never saw him afterwards.

Cross-Examined: He lived four or five days after I last saw him. I left him in the hands of Dr. Bayley, and saw him no more. I did not probe the wound; can't say whether the ball went through him straight or round the rib; don't think it could have been probed at the time. It went under the left shoulder blade and was taken out of him opposite; between those points is the covering of the heart and its surroundings. The wound was not bleeding when I saw it; when I cut out the ball it bled a little; it would not necessarily bleed if it struck the pericardium, but if it passed through the auoricle of the heart, death must have ensued immediately. Any blow, whether it strikes a vital part or not, would affect the nervous system to a greater or less degree. Deceased was named John Wormack; I heard from reputation they were related as brothers-in-law; were friendly so far as I know personally. Don't know the distance of their houses apart; could not say. I did not see him shot; saw him with a gun-shot wound; don't know positively when he was shot; saw him twice. He must have lived seven or eight days after I heard he was shot.

DR. DAVID BAYLEY, sworn for the State, said: I belong to the Eclectic school of medicine; am a practicing physician; knew John Wormack in life; attended him when wounded. Dr. Hardwick was first in attendance. I attended him afterward. The wound was from a pistol shot, in the left shoulder, that came through his body. I was called on the night of the 25th July, 1870; did not come until next day, until after Dr. Hardwick had extracted the ball. The wound was caused by a ball that was a pistol ball.

Cross-Examined, says: I did not see him until after Dr. Hardwick did.

Re-Examined by the State: I had a conversation with the deceased as to the cause of his death. He did not say anything that induced me to think he believed his end was approaching. I did'nt tell him whether I thought his wound was mortal or not. He said nothing to me on the subject at that time that indicated what he thought on the subject. He did not, even when dying, say anything on the subject, up to two hours before his death that would indicate he thought he was dying.

JOSEPH MANN, sworn for the State, said: I knew John Wormack in life. I saw him about three hours before he died; he was in a dying condition; he gave me to understand he was dying. Says he to me: " Am I to die in this way without anybody doing anything for me; " somehow that way, don't know exact words. He died at two, and I left him at eleven. His breathing was labored; he could hardly breathe; I saw that death was on him at that time.

Cross-Examined: Doctor David Bayley was there at that time. He was not present when the conversation took place; had a second interview with him. Doctor David Bayley left about the same time I did. He was out at his buggy, and I went back with Mr. Bass to find out more fully about it. I am not a physician; saw him no more after I went away second time; staid that time about fifteen minutes; I went back to ask him more fully some things that I was not satisfied about. I think the words, " am I to die" were spoken when I was in the second time. I wanted to console the dying man, and when he asked me if I thought he would die, I said I reckon not.

MILES BASS, sworn for the State, said: I knew John Wormack in life...

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