Bowens v. State

• Decision Date: 16 March 1899
• Parties: BOWENS v. STATE.
• Court: Georgia Supreme Court

32 S.E. 666

106 Ga. 760

BOWENS v. STATE.

Supreme Court of Georgia

March 16, 1899

Syllabus by the Court.

1. It is not essential to the validity of an indictment for murder that it should allege upon what portion of the body of the deceased the mortal wound was inflicted; nor, when the indictment charges that the homicide was committed by beating the deceased with a piece of iron, is it necessary to specifically set forth the size or weight of the same.

2. It follows that the location and character of a wound by which a death was caused, and the nature of the weapon by which such wound was inflicted, may be proved on the trial of an indictment for murder lacking in allegations of the kind above indicated.

3. It is not competent for a witness who had acted as the amanuensis of an illiterate person, in writing letters to the latter's wife, to testify that they were affectionate in character, and thereupon state his belief, derived from a knowledge of the contents of such letters, that the husband was passionately fond of the wife.

4. A trial judge, in passing upon grounds of a motion for a new trial, with a view to correcting and then verifying the same may, without impropriety, act upon a written statement of facts prepared by the solicitor general, if satisfied that the same is true, and that it fully and fairly sets forth what occurred at the trial with reference to the matter in question.

5. A new trial will not be granted in a criminal case because of alleged error "in not cautioning and instructing the jury, and thereby counterbalancing the evil effect of" improper remarks made by the solicitor general in his argument before the jury; it not appearing that any request to charge on this subject was presented, or any ruling of the court invoked with reference thereto, and the remarks themselves having little or no bearing upon the merits of the case, but really amounting to no more than a refutation by the solicitor general of an attack upon his official integrity made by counsel for the accused.

6. That the court, in a trial for murder, allowed a witness for the state to testify: "I met [the accused] about a week before he killed his wife. He said he had been in jail thirty days, and had got out again,"--and then ruled out this testimony, did not have the effect of putting the general character of the accused in issue.

7. The evidence fully warranted the verdict.

Error from superior court, Chatham county; R. Falligant, Judge.

Toby Bowens was convicted of murder, and brings error. Affirmed.

Fred T Saussy, R. M. Lester, and Gordon Saussy, for plaintiff in error.

W. W Osborne, Sol. Gen., and J. M. Terrell, Atty. Gen., for the State.

LUMPKIN P.J.

1. The indictment in this case charged that the accused, Toby Bowens, murdered his wife, Rosa Bowens, by beating her with "a certain piece of iron." It did not allege upon what part of her person the mortal wound was inflicted, nor did it state the size or weight of the instrument used. There was a demurrer to the indictment, presenting several objections thereto. None of these, however, need be noticed, except those complaining that the indictment was defective in failing to state the location of the wound, and to minutely describe the piece of iron with which it was inflicted. The court overruled the demurrer, and, in our opinion, rightly did so. The indictment certainly complied with the requirements of section 929 of the Penal Code. We are at a loss to perceive how the defendant was deprived of any substantial right in making his defense merely because the indictment was silent as to the location of the wound on the person of the deceased, and failed to allege the precise dimensions or weight of the weapon by which death was caused.

2. During the progress of the trial, objection was made to the testimony of a medical witness as to the location and character of the wound, and also to the testimony of another witness as to the description of the piece of iron. The grounds of objection were that the indictment did not "describe the location of the wound inflicted by the defendant upon deceased," and that "the piece of iron called a 'fish plate' was not sufficiently described in the indictment." The ruling above announced with reference to the demurrer covers the point now under consideration, and it follows, of course, that the court properly admitted the testimony of these witnesses.

3. The accused introduced as a witness H. S. Moore, and offered to prove by him the following: "I employed Toby Bowens to work for me at Tybee. He could not write, and I used to write his letters to his wife at his dictation. I remember their general contents. They were affectionate, and I believe he was passionately fond of her. I frequently inclosed money in those letters, at his request." The court rejected this testimony on the ground that it was not the best evidence of the contents of the letters. Obviously, the purpose of counsel for the accused was to show by the witness that, in his opinion derived from a knowledge of the contents of these letters, the accused was passionately fond of his wife. It requires no argument to show that the fact sought to be established could not be proven in this way. It would be very dangerous indeed to allow a witness to characterize a series of letters as being of a particular nature, and then proceed upon this to testify to his belief that they showed this that, or the other state of feeling on the part of the author or person at whose dictation the letters were written. This would be allowing him to...