Brady v. State
| Decision Date | 15 December 1924 |
| Docket Number | 4498. |
| Citation | 126 S.E. 250,159 Ga. 469 |
| Parties | BRADY v. STATE. |
| Court | Georgia Supreme Court |
Rehearing Denied Jan. 17, 1925.
Syllabus by the Court.
Where in a murder case depending entirely upon circumstantial evidence, the court gave in charge to the jury the principle of law laid down in the Penal Code 1910, § 1010, the failure of the court, in the absence of a timely, pertinent, written request, to instruct the jury, in connection with such principle, that the evidence must connect the accused with the perpetration of the alleged offense, is not reversible error.
Where in such a case the court instructed the jury that the defendant entered upon his trial with the presumption of innocence in his favor, and that such presumption followed him throughout the entire trial until his guilt had been proved in the manner and form which the court would thereafter state to the jury, and where the court then gave in charge to the jury the principle of law embraced in the Penal Code 1910, § 1013, and where the court further instructed the jury that, if a reasonable doubt was raised by the evidence as a whole, the doubt must be given in favor of innocence, and further instructed the jury that the law does not permit one to be convicted on a violent suspicion of his guilt, the failure of the court to instruct the jury that before they would be warranted in convicting the defendant the evidence must be sufficient to establish his guilt to a moral and reasonable certainty, and beyond a reasonable doubt, is not reversible error in the absence of a timely written request for such instruction.
The instruction of the court set out in the third division of the opinion is not erroneous for any of the reasons assigned.
In the absence of a pertinent, timely, written request, the failure of the court to charge the jury on the subject of the impeachment of witnesses affords no ground for the grant of a new trial.
The verdict is supported by the evidence.
Error from Superior Court, Dawson County; J. B. Jones, Judge.
John Brady was convicted of murder, and he brings error. Affirmed.
John Brady was indicted for the murder of Colquitt Sewell in Dawson county on November 14, 1923. The evidence for the state and the defendant was substantially as follows:
Henry Covington, for the state, testified: He knows John Brady and Colquitt Sewell. On the second Saturday in April last they had a little disturbance, and Sewell cut Brady a little. He cut him on the side of the stomach and on the back of the hip. After the cutting Brady got the witness to take him to a doctor at Ball Ground. On the way to the doctor's Brady said: He kept on making this statement. The next morning witness went to Brady's house. Brady had a .38 pistol, and tried to get his wife and mother to let him go and kill Sewell. He said he was going to kill him if he could get there. His wife and "them" asked him not to go, and persuaded him not to go. They told him it would cause trouble, and he told them he would not go then, and said he would go some time.
Cross-examination Brady's land adjoined Sewell's, and Brady lived about a quarter of a mile from Sewell. Brady made a crop on his farm, and Sewell made one on the place where he was living. Sewell got his mail right above Brady's house, about 250 yards and in plain view. Sewell stabbed Brady in three places, but the doctor said it was not any more than a pin scratch. Brady came to witness to get him to go with him to the doctor at Ball Ground. He said they had had a fight that night at Brady's home. Witness brought him back that night. He was pretty mad and drunk. He was about sober the next morning.
S. H. Milsaps, for the state, testified: Colquitt Sewell was his son-in-law. He saw him on the 14th day of November. He died four days later at a hospital in Gainesville. He first learned of his being shot between 6 and 7 o'clock. He was at home about a mile from the place of the shooting. Osc Brady and Oney Godfrey came to his house and told him about it. He got a lantern, took his son, and went down with Osc Brady and Godfrey, and found Sewell lying there. Sewell never spoke. He was just about dead. He was shot in the right eye, and was lying on the side of the road where he had fallen. His shotgun was lying there unbreeched, and the shell was lying about a foot or two from where it was unbreeched, and his hand was lying over it, "right where it was broke in two." They were about six feet from where he was lying. Between April and November, Sewell worked at Whitestone, above Jasper, and went off to Tennessee, and worked a while. He had not been back more than one and a half or two weeks. Osc Brady is a brother of John Brady.
Cross-examination: Sewell made a crop that year, and was at home making his crop until it was laid by about the middle of July. After the crop had been laid by, he went off on the public works. Sewell was at home from April until the first of August. His land kind of cornered with Brady's. The field Brady was working was about 250 yards from the field where Sewell had a crop. Osc Brady and Godfrey said they were going down the field, that they had been to a certain place to work that day, and just as the sawmill stopped they heard somebody hollering. It was about 300 yards, or a little more, from Osc Brady's house to where Sewell was. Osc Brady went and told his wife where he was, and then came back and helped witness with Sewell up to his home. After Osc Brady left witness, there were two men talking out there. Witness did not know who they were.
Redirect examination: When Osc Brady went off, Godfrey stayed with witness. When Osc Brady went off, the men were talking in the direction where he went.
J. G. Milsaps, for the state, testified: He is a brother-in-law of Sewell. Was present at John Brady's house last year in April, at the time Brady and Sewell had a difficulty. "We were all standing around there drinking, when John said he was going to knock hell out of Sewell, and had something in his hand, and hit him." It was dark, and witness did not know what he had--a rock or something. Brady knocked Sewell four or five feet, and jumped upon him. Sewell told them to take him off. Witness jumped up and took Brady by the coat and pulled him up, and somebody ran up and hit witness. They said that Sewell cut Brady. He did not see the place where he was cut. Afterwards, in September, he had a conversation with John Brady. They were working the road. Brady said that he was willing to make friends with witness, but, "as to Sewell, he was going to whip hell out of him." Sewell was a small fellow, weighing about 135 pounds, and Brady 200 pounds. Witness did not make up with John Brady, and does not feel kindly towards him.
Martha Covington, for the state, testified: On more than two occasions before the killing she had a conversation with John Brady, relative to Sewell. In April, 1923, Brady said something about a knife--stabbing with a knife, and said he would not fight with a knife; if he did he would take a big knife, and would souse it in that way, and if witness heard of Sewell being killed she might say it was John Brady who did it. About a week later, some time in April or May, she was passing John Brady's house and stopped, and he said that she might depend on it that, if she ever heard of Sewell being killed, she could say John Brady did it.
Cross-examination: She is the mother of Rich, Henry, and Andy Covington. The first conversation was at John Brady's house. He was not drunk, but had been drinking. She did not know whom she told of the above statement of the defendant, nor when, nor where. She first told it when she went home to the children. When asked which child, she replied: "I don't know--just all of them." Asked to whom she told it the second time, she replied she did not know. The witness' family and Brady's were on good terms. She never had anything against John Brady. The families had a little falling out, but got over it. Her son Rich was the one who reported John Brady's brother for stilling, and that gave rise to the trouble. They would pass and not look towards witness' house. There was a feeling which extended even to witness. It all grew out of the fact that her son Rich reported Brady's brother for distilling brandy in August.
Hy Byers, for the state, testified: He and his brother ran a sawmill during 1923 in Dawson county. Col Sewell met his death in Dawson county on November 14, 1923. On that day Sewell was bearing lumber off at the sawmill. John Brady came to the mill and saw Sewell. He said: "I see that you are working that little bear, Col Sewell." Brady had his hand tied up. Witness noticed it, and asked him what was the matter. He said he had been in a pretty bad shape since Sewell cut him, and that this was the first time he had seen Sewell since he had cut him, and that he had a good notion to go out there and "whip hell out of him." Witness told him he would rather he would not have any trouble at the mill, and Brady said he would not. Brady said he would see Sewell later. That was something like an hour and a half or two hours before Sewell was killed. The mill quit work about 5 o'clock, and Brady left about an hour and a half before it quit. Saw Sewell when he left. Sewell got his dinner bucket and coat, and walked off towards home. It was not over five minutes after Sewell left before witness hear a pistol fire in the same direction that Sewell had gone. He heard only one shot, and nothing afterwards. The place where Sewell was shot was about 150 yards from the mill.
Andy Covington, for the state, testified: He was working at Byers' mill the day Sewell was killed. Saw Sewell working there...
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