Brown v. State

• Decision Date: 27 February 1951
• Docket Number: No. 2,No. 33275,33275,2
• Parties: BROWN v. STATE
• Court: Georgia Court of Appeals

Page 313

64 S.E.2d 313

83 Ga.App. 650

BROWN v. STATE.

No. 33275.

Court of Appeals of Georgia, Division No. 2.

Feb. 27, 1951.

Rehearing Denied March 23, 1951.

Syllabus by the Court.

The evidence authorized the verdict finding the defendant guilty of voluntary manslaughter, and there being no merit in any of the special grounds for any reason assigned, the court did not err in overruling the motion for a new trial.

S. C. Brown, Jr., was indicted in the Superior Court of Gwinnett County for the murder of Harold Frachiseur. He was convicted of voluntary manslaughter with his punishment fixed at not less than twenty years and not more than twenty years in the penitentiary. His motion for a new trial, based upon the usual general grounds, and eleven special grounds, was overruled and he excepted.

W. L. Nix, Lawrenceville, A. L. Henson, Atlanta, for plaintiff in error.

Hope D. Stark, Sol. Gen., Marvin Allison, Lawrenceville, Joseph D. Quillian, Winder, for defendant in error.

MacINTYRE, Presiding Judge.

1. In special ground 2 error is assigned upon the ground that the court erred in charging upon the law of confessions for the reasons (a) there was no evidence showing that the defendant has made a confession of having committed the offense of murder for which he was on trial, (b) while the evidence showed that the defendant said he shot the deceased, it also shows either justification or accident, and in neither event would it be a confession of murder, (c) the charge constituted an intimation on the part of the court that the defendant had made a confession of having committed the offense of murder, and (d) the charge was not adjusted to the evidence because, taking into consideration any evidence of an incriminatory statement, or of a confession, the evidence offered to sustain the contention that a confession had been made did not include evidence of every essential element of murder and to make a purported confession admissible, it must be such as to admit every element of the offense charged, without explanatory or mitigating circumstances.

'A confession is a voluntary statement made by a person charged with the commission of a crime wherein he acknowledges himself to be guilty of the offense charged.' Owens v. State, 120 Ga. 296(2), 48 S.E. 21. This definition of a confession implies an admission of every essential element necessary to establish the crime wherewith the defendant is charged. Unless the statement of the defendant is broad enough to comprehend every essential element necessary to make out the case against him, it cannot be said to be an admission of guilt, a confession. There is a difference between an incriminating statement and a confession of guilt. In an incriminating statement only one or more, but not all, of the facts entering into the criminal act is admitted, while in a confession the entire criminal act is confessed; that is, every essential element necessary to establish the crime with which the defendant is charged is admitted. Clarke v. State, 165 Ga. 326, 331, 140 S.E. 889. 'Incriminating statements, to be the equivalent of a confession of guilt, must be so comprehensive as to include every act necessary to be proven by the prosecution in order to establish the defendant's guilt. * * * An admission of a fact not in itself involving criminal intent is not a confession. The term 'confession' is restricted to acknowledgment of guilt, and is not a mere equivalent of words or statements.' Owens v. State, supra, 120 Ga. at page 299, 48 S.E. at page 23. 'An admission of the main fact, from which the essential elements of the criminal act may be inferred, amounts to an admission of the crime itself', Owens v. State, supra, as 'Where there is evidence showing that the defendant admitted the homicide of which he is accused, and he states in connection therewith no facts or circumstances of excuse or justification, or gives reasons which are insufficient to furnish any legal excuse or justification, the statement amounts to a confession of guilt, and authorizes a charge on that subject.' Pressley v. State, 201 Ga. 267, 271, 39 S.E.2d 478, 481. 'Evidence having been introduced upon the trial tending to show that the defendant admitted the killing, and no circumstances of justification or alleviation appearing in connection with this admission, the court did not err in charging upon the subject of confession. This is true, although the defendant, when referring upon other occasions to the killing, did state circumstances of justification or mitigation.' Nail v. State, 142 Ga. 595(3), 83 S.E. 226. 'The evidence that on the night subsequent to the homicide the accused said to the arresting officer that he had been separated from his wife and went to the house where his wife lived, to take a letter from a piano house about a piano, and that when his wife turned to go into the house he shot her, and that after the shot was fired he left the house, is sufficient to establish a confession of guilt by the accused of the murder of his wife by shooting her as charged in the indictment. Inasmuch as the law, in the absence of mitigating circumstances, declares a homicide to be felonious and done with malice, the confession by the accused that he did the act which produced the death of his wife is a confession that he killed her; and this proposition is established by the case of Webb v. State, 140 Ga. 779, 79 S.E. 1126.' Lucas v. State, 146 Ga. 315, 328, 91 S.E. 72, 78.

Applying the foregoing rules to the following evidence, we think the charge upon the law of confessions are authorized. Lamar Crow testified in part: 'I went in the [deceased's] house and found S. C. [the defendant] at the telephone and I asked him what the trouble was, he said, 'I'm trying to get a doctor,' he said, 'I shot Harold Frachiseur.' Mr. Turner was behind me and he pulled S. C. away from the telephone and Mr. Turner got the telephone and tried to get a doctor and couldn't and he called an ambulance and taken Mr. Brown [the defendant] in the other room. Mr. Brown made a statement there freely and voluntarily and no threats were made to him or anything promised him to get him to make the statement. Mr. Frachiseur said, 'I need a doctor, I need medical attention, S. C. shot me.' S. C. was standing there when Mr. Frachiseur made that statement. S. C. said, 'Yes, I shot you. I shot you through the door.' I taken S. C. in the other room. I was standing there holding S. C. when Mr. Frachiseur fell over. There was some blood coming from Mr. Frachiseur's mouth and he was standing there drawn over and he just said 'uh' like that and fell over [dead].' Cliff Turner testified in part: 'When we went in there [in the deceased's house] he [the defendant] had hold of the telephone and I took the telephone, and this Frachiseur fellow come up begging us to have something done for him, he wanted us to get a doctor, said S. C. had shot him, and he pointed up here on his shoulder. I don't know what all S. C. said, he said, 'Yes, I shot you through the door,' but I didn't know what he meant about the door. I never did know until the next morning. Frachiseur was not cussing, he was just begging to have something done for him. I found out about the closet door the next morning. I went back down there the next morning; there was a hole shot through the closet door in the bedroom.'

'The law presumes every homicide to be felonious, until the contrary appears, from circumstances of alleviation, of excuse, or justification; and it is incumbent on the prisoner to make out such circumstances to the satisfaction of the jury, unless they arise out of the evidence produced against him.' Hudgins v. State, 2 Ga. 173, 188.

This ground of the motion for a new trial is not meritorious.

2. In special ground 1 error is assigned upon the court's charging upon the law of incriminating admissions upon the ground that such a charge was not adjusted to the evidence. As to whether the evidence authorized a charge on incriminating statements or admissions we think the testimony of Dick Martin, deputy sheriff, was sufficient to authorize such a charge. It is as follows: 'He [the defendant] said [in the automobile on the way to a hospital after he had been brought to jail] he wouldn't have hurt Harold for anything. He said they all jumped on him and he had to do something. He said he shot through the bathroom door to scare him, and he wouldn't have hurt him for anything.' While an admission by the defendant that he killed Frachiseur, without any explanation as to why the killing was done, would give rise to a presumption of malice, would authorize a conviction of murder, and would constitute a confession, no such presumption could be drawn from a statement which admits, but at the same time justifies, the act. The part of the statement which, if unexplained, would criminate, although it could be received as evidence of the fact it admitted (the killing), it could not, to the exclusion of another part of the statement which qualified and explained it, create a presumption that the accused was actuated by malice and was guilty of murder. Futch v. State, 90 Ga. 472, 481, 16 S.E. 102. They constitute a criminating admission that the accused killed Frachiseur, but further than this the words tended to deny guilt in the commission of the act (the killing) in that 'they all,' including the deceased, Frachiseur, jumped on the defendant and he had to do something, etc., and this was not a confession of the crime charged. As an incriminating statement or admission against the defendant, this statement was admissible in evidence and the court did not err in charging the jury on incriminating admissions and giving the distinction between a confession of guilt and criminating admissions which are mere evidentiary facts not inconsistent with innocence. Powell v. State, 101 Ga. 9, 29 S.E. 309; Clarke v. State, 165 Ga. 326, 331, 140 S.E. 889; Futch v. State, supra; ...