Baker v. State

• Decision Date: 11 November 1914
• Citation: 83 S.E. 531,142 Ga. 619
• Parties: BAKER v. STATE.
• Court: Georgia Supreme Court

83 S.E. 531

142 Ga. 619

BAKER v. STATE.

Supreme Court of Georgia

November 11, 1914

Syllabus by the Court.

On the trial of a murder case, the defense involved the question whether the accused acted under the fears of a reasonable man. Evidence was introduced on his behalf, tending to show that several nights prior to the homicide the accused, the deceased, and two others engaged in a fight, in the course of which the accused was cut; that the deceased had thereafter made threats against the accused, and had refused to make friends with him; and that on the night of the homicide the deceased followed the accused, was the aggressor in the re-encounter, and drew his hand from his pocket, having something in it which looked like a knife, and advanced upon the accused. Held, that it was error to reject evidence, offered for the defendant, to show that about 11 months before the homicide the deceased made an unprovoked attack upon the accused with a deadly weapon, and that about 6 weeks before the homicide he cursed the accused and threatened to whip him.

Error from Superior Court, Floyd County; Moses Wright, Judge.

Clint Baker was convicted of murder, and brings error. Reversed.

Clint Baker was indicted for the murder of Ernest Richard Lamb alias Ernet Richard. The evidence on behalf of the state tended to show a case of murder by shooting. That on behalf of the defense tended to show the following, among other facts: Several nights before the homicide the deceased, the accused, and two others had a fight, in the course of which the accused was cut in the head and his clothing was cut in several places. Lamb, the deceased, had a bad character for violence. A few days before the homicide he said to a witness that Baker, the accused, had cut him, and that "he would have to do it over again." One witness testified that Lamb said that he was going to get even with the man who cut him; another testified that Lamb said he thought he would kill Baker. On another occasion he said that "this thing ain't settled yet." On the night of the homicide Lamb and two others were in a store. Baker went in to get some tobacco. As he and another started to go home, Lamb met him and asked him what made him cut Lamb. Baker denied having done so, but Lamb insisted, and proposed to Baker to go outside, as he wished to talk to Baker. The latter said he would not go unless Lamb would make friends, which Lamb declined to do. Baker started home, and Lamb followed him. He told Baker that if the latter went up that street (which was the way that led to Baker's home) Baker would have to fight him. Lamb then ran his hand into his pocket and brought out something that looked like a knife, and, raising his hand, advanced toward Baker, when the latter shot him. The accused was convicted. He moved for a new trial, which was denied, and he excepted.

W. M Henry, H. L. Lanham and J. P. Jones, all of Rome, for plaintiff in error.

W. H Ennis, Sol. Gen., of Rome, W. B. Shaw, of La Fayette, and Warren Grice, Atty. Gen., for the State.

LUMPKIN J. (after stating the facts as above).

The controlling question in this case arose on the rejection of certain evidence. The evidence for the state tended to show a case of murder. That on behalf of the accused tended to show that he shot the deceased in defense of his life, or of his person against one who was seeking by violence to commit a felony on him, or at least that he acted under the fears of a reasonable man that such was the case. It pointed to the deceased as the aggressor. It further tended to show a previous difficulty between the parties, several nights before the homicide, in which the accused was cut, and perhaps also the deceased, and various threats by the latter in regard to the former, and that the character of the deceased for violence was bad. In this connection the accused offered evidence that about 11 months before the homicide the deceased had made an unprovoked attack upon the accused with a deadly weapon, and also that about 6 weeks before the homicide the deceased cursed and abused the accused, and said that he could and would whip the latter, but was induced by a third person to desist. The evidence of each of these occurrences was rejected by the trial judge, on the ground that they were too remote and disconnected.

It may be said generally that remote occurrences, wholly disconnected from the case on trial, and throwing no light on it, cannot be proved. But previous difficulties may be such as to throw light on the issue on trial, though transpiring some time before the homicide. The admissibility of the evidence is not determined solely by the length of time between the two difficulties, though that may be a factor in solving the problem. All of the circumstances must be considered, to ascertain whether or not there is such a connection between the two transactions that evidence of the former will throw light on the latter. One of the most common ways of showing this connection is to show continued differences or difficulties. Let us take an illustration or two: A difficulty occurs, but the two participants make friends and continue so for months or years. Again they have a difficulty, and one is killed. Ordinarily the former difficulty, standing alone, would throw no light on the homicide. On the other hand, two men have a difficulty in which one attempts to kill the other with a weapon, and as they separate the person making the attempt announces his intention to kill the other whenever they meet again. They go to different places and do not see each other for a considerable length of time. On their first meeting the person threatened kills the other, and there is evidence tending to show that the slayer was attacked, and raising the question whether he acted under the fears of a reasonable man in the killing. It cannot be doubted that the former difficulty could be proved as a part of his defense. In 2 Wharton's Crim. Ev. (10th Ed.) § 918, it is said:

"The general rule is that circumstances showing previous difficulties or encounters between the accused and the deceased are relevant, where such circumstances have an obvious connection with, or serve to explain, the facts and circumstances of the homicide charge on trial. The length of time intervening is only material as affecting the credibility and weight to be given to such evidence. Where the difficulty is followed by continuous hostility, or a disposition to renew at every opportunity, the weight of the testimony is correspondingly increased. Where the difficulty is temporary, or followed by a cessation of hostilities, or former peaceful relations had been resumed, the circumstances of the previous difficulties are of little value."

In section 929 of the same volume it is said:

"The rule is clearly settled that apprehensions or opinions of third parties that the accused is in imminent danger are not relevant. But facts from which apprehension might reasonably be inferred, as distinct from opinion, are relevant, when stated or shown by third parties."

On a somewhat similar question of the admissibility of evidence of the bad character of the deceased for violence, the author says (volume 1, § 63a) that generally evidence of the bad character of the deceased is irrelevant, for the law protects every one from unlawful violence, regardless of character, but that to this rule there are two exceptions, one of which is that:

"Where the evidence tends to prove that the accused acted in self-defense, evidence of the violent and dangerous character of the deceased, known to the defendant, is admissible as tending to characterize the acts of the deceased, as bearing on the reasonableness of defendant's apprehension of danger at the time of the homicide." Commonwealth v. Tircinski, 189 Mass. 257, 75 N.E. 261, 2 L.R.A. (N. S.) 102, 4 Ann.Cas. 337.

In 6 Enc.Ev. 779, it is said:

"By the great weight of authority, when the evidence as to self-defense is conflicting, or a sufficient preliminary showing has been otherwise made, the defendant may show his previous difficulties with the deceased, or the latter's previous attempts upon his life, or other assaults upon or hostile conduct toward him. Such evidence is competent, because it tends to explain the conduct of the deceased at the time of the homicide, and shows grounds for the defendant's fear of injury. The remoteness of such acts or conduct is said to be no objection to their competency; but it has been held otherwise, and in some states it must closely precede the fatal difficulty."

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