Barnes v. State
| Decision Date | 06 November 1919 |
| Docket Number | 10552. |
| Citation | 100 S.E. 788,24 Ga.App. 372 |
| Parties | BARNES v. STATE. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
The indictment in its formal parts followed section 954 of the Penal Code of 1910. It also named the accused, showed the date and venue of the offense, and further alleged that the accused "did * * * unlawfully and with malice aforethought kill and murder [a named decedent] by shooting him * * * with a pistol." Such an indictment sufficiently charges the offense of murder. Thomas v State, 71 Ga. 47, 48 (5). It also embraces the minor offense of voluntary manslaughter. Reynolds v State, 1 Ga. 222 (1); Watson v. State, 116 Ga 607, 43 S.E. 32. Notwithstanding the language of the Code sections defining these offenses, it is not necessary to allege in the indictment that the accused was "of sound memory and discretion," or that the person killed was "a human being," or was "in the peace of the state." Dumas v. State, 63 Ga. 600 (1); Sutherland v. State, 121 Ga. 591, 49 S.E. 781 (1). The demurrer to the indictment was therefore properly overruled.
Pending a motion for a new trial by one who has been indicted for murder and been convicted of voluntary manslaughter, it is within the sound discretion of the presiding judge to grant or refuse admission to bail upon application therefor by the movant. Crumley v. Gibbs, 149 Ga. 119, 99 S.E. 297.
While the prisoner alone can put his general character in issue in any criminal case, yet he can do so as effectively by his statement to the court and jury as by sworn testimony introduced in his behalf. Jackson v. State, 76 Ga 551; Doyle v. State, 77 Ga. 515 (2); Crawley v. State, 137 Ga. 777, 74 S.E. 537 (1).
Evidence may be offered by the state in any criminal case to rebut any material fact asserted by the prisoner in his statement to the court and jury. Doyle v. State, 77 Ga. 515 (2); Goolsby v. State, 133 Ga. 427, 66 S.E. 159 (2). Good character is such a fact (Shropshire v. State, 81 Ga. 589, 8 S.E. 450), and an assertion of good character by the prisoner in his statement, or a narrative therein of facts, with an argument deduced therefrom to show his general good character, authorized the introduction of evidence to the contrary.
In view of the principles announced in the two preceding paragraphs, that portion of the prisoner's statement set out in the record put his general character in issue, and authorized the introduction of evidence to the contrary.
It was not error to refuse the request to charge on disparity of size. See Strickland v. State, 98 Ga. 84, 25 S.E. 908; Alexander v. State, 118 Ga. 26 (3), 28, 44 S.E. 851. (Luke, J., dissenting.)
All the assignments of error have been considered, the evidence authorized the verdict, and for no reason assigned was it error to overrule the motion for a new trial.
Error from Superior Court, McDuffie County; Henry C. Hammond, Judge.
J. M. Barnes was convicted of murder, and he brings error. Affirmed.
Sam L. Olive, of Augusta, B. J. Stevens, of Thomson, and Hines, Hardwick & Jordan, of Atlanta, for plaintiff in error.
A. L. Franklin, Sol. Gen., of Augusta, John M. Graham, of Atlanta, and John T. West, P. B. Johnson,
p>Page and J. B. Burnside, all of Thomson, for the State.
Judgment affirmed.
I concur in each of the rulings of the majority of the court, except the ruling announced in paragraph 6 of the decision. The plaintiff in error was indicted by the grand jury of McDuffie county for the offense of murder; it being alleged in the indictment:
"That the said John M. Barnes, in the county aforesaid, on the 3d day of February, 1919, with force and arms, did then and there unlawfully and with malice aforethought kill and murder one J. O. J. Lewis, by shooting him in the body with a pistol, contrary to the laws of said state, the good order, peace, and dignity thereof."
To that indictment the accused demurred generally, contending that no offense was set forth, and specially because it was not alleged that at the time of the homicide the accused was "of sound memory and discretion," or that the decedent was "in the peace of the state." The demurrer was overruled, and exceptions pendente lite were taken. Upon trial the accused was convicted of voluntary manslaughter. He then moved for a new trial and applied for admission to bail. His application for admission to bail being denied, he excepted pendente lite; and his motion for a new trial being overruled, he brings the case here for review. Other facts, in so far as they are material here, will be set out in connection with the points decided.
1, 2. The first and second headnotes need no elaboration.
3-5. After the prisoner had made his statement, the court permitted a number of witnesses to testify as to his general bad character, and particularly as to his character for violence. This evidence was admitted on the theory that the prisoner's statement had raised the issue, and was admitted over the objections, first, that the issue could not be so raised; and, second, that the issue had not been so raised, even if, under the law, it could be done. Numerous grounds of the amended motion for a new trial complain of the judgment of the court admitting such evidence over the objections stated. That portion of the prisoner's statement here in point was as follows:
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...81 Ga. 589, 8 S. E. 450; Goolsby v. State, 133 Ga. 427 (2), 66 S. E. 159; Josey v. State, 137 Ga. 769, 74 S. E. 282; Barnes v. State, 24 Ga. App. 372 (4), 100 S. E. 788. 2. Arthur Clay, a police officer, testified as follows: "It was reported around town that there was some gonorrhea around......