Cain v. State, (No. 19332.)
| Decision Date | 15 January 1929 |
| Docket Number | (No. 19332.) |
| Parties | CAIN. v. STATE. |
| Court | Georgia Court of Appeals |
(Syllabus by the Court.)
The grounds of the motion for a new trial other than those dealt with above, are without merit.
Error from Superior Court, Gwinnett County; W. W. Stark, Judge.
Math Cain was convicted of voluntary manslaughter, and he brings error. Reversed.
Math Cain, Elbert Cain, and J. C. Cain were jointly indicted for the murder of L. J. Henry. Math Cain only was on trial in the instant case, and the verdict was voluntary manslaughter. His motion for a new trial was overruled, and he excepted.
J. C. Cain and Elbert Cain are sons of the defendant Math Cain. The state contends that J. C. Cain, in going from his home to his father's house, drove out of the road and across the end of a terrace maintained by L. J. Hen ry; that J. C. Cain had done this on several
previous occasions; that Henry went out and fixed the terrace; that, after returning to his home, one Duncan came to the home of Henry, and Henry told Duncan about the occurrence and that he was going to see J. C. Cain that night and get after him about running over his terrace; that late that afternoon Henry got his gun and went to kill a squirrel, and, on returning to his home through the pasture and woods, he came by where he had fixed the terrace that morning, and remained in the pasture, which was separated from the road by a wire fence; that, while Henry was there, J. C. Cain came by on his way home from his father's, and again drove out over the end of the terrace maintained by Henry; that Henry hollered at him and asked what he meant by running over his terrace; that Henry then set his gun down by the side of a bush and walked up towards the barbed wire fence, and was talking to J. C. Cain, and about that time the defendant, Moth Cain, his wife, and his other son, Elbert Cain, came up in a car, and Math Cain and his son Elbert jumped out of the car, and Math Cain drew a shotgun on Henry while Elbert Cain crawled through the barbed-wire fence, picked up Henry's gun which was by the side of a bush, and beat Henry over the head, giving him mortal wounds from which he died about two days later. The state contends that, after Henry told Duncan that he was going to get after J. C. Cain for running over his terrace, Duncan went to where the defendant and his two sons were working on a house, and told them of Henry's intention to see J. C. Cain that night, and that the defendant and his two sons arranged to be there at the same time and attack Henry, who was both old and feeble.
The defendant contended that, after he and his two sons had finished the day's work on the house, J. C. Cain started to his home; that, after J. C.'s departure, the defendant, his wife, and his other son Elbert started out to buy some chickens; that, as they came to the place where Henry and J. C. Cain were, Henry had his shotgun drawn on J. C. Cain, and that Elbert Cain jumped out of the car and ran towards them to keep Henry from shooting his brother, J. C. Cain; that, as Elbert approached them, Henry turned his gun on Elbert and threatened to shoot him; that Elbert got hold of the gun, and he and Henry were scuffling over it and fell on the ground several times in the scuffle, and were up and down and rolling over in a bunch of snags on the ground; that Henry received his wounds from the snags which he hit in the scuffle, and that these wounds caused his death; that Elbert Cain got the gun and gave it to the defendant; that, after getting the gun from Henry, both Elbert and the defendant had an opportunity to shoot Henry, anddid not do so; that all the defendant did was in defense of his sons; and that there was no conspiracy for the three to meet there and attack the one.
The dying declaration of Henry was:
The doctor's testimony as to the nature, location, and number of wounds on the decedent's head, the testimony as to the condition of the land where the difficulty occurred, and other facts and circumstances, tended to support the contention of the state that the deceased was beaten to death. The trial judge, in his order overruling the motion for a new trial, said: The evidence of the justice of the peace substantiates the statement made by the trial judge in reference to what the defendant said to him.
John I. Kelley and O. A. Nix, both of Law-renceville, for plaintiff in error.
Pemberton Cooley, Sol. Gen., of Jefferson, I. L. Oakes, of Lawrenceville, and G. Fred Kelley, of Gainesville, for the State.
BLOODWORTH, J. (after stating the facts as above). [1] 1. Three arguments were announced to be made by the state. The order of arguments was as follows: One for the state, one for the defendant, one for the state, one for the defendant, one for the state. The state had the opening and conclusion; the defendant having introduced, evidence. The motion for a new trial complains that the court erred in permitting counsel for the state "to make an argument to the jury between the two arguments of counsel for the defendant." "Where a number of counsel are engaged, the order in which they may argue is in the discretion of the court, unless such order is expressly regulated by rule of court or by statute." 16 C. J. § 2223, p. 888, and cases cited in footnote. While the statute of Georgia regulates the opening and conclusion of arguments, we know of no statute of this state or rule of the trial court which prohibits the order of argument pursued in this case. On the contrary, the rule of that court seems to require this order of argu ment, as evidenced by the following ruling embodied in this ground of the motion: "It has been the custom since I have been on the bench, where there has been as many as three arguments for the State and only two for the defendant's counsel, the court has universally held, which I hold in this case, that the State has to open the case with an argument and then counsel can alternate on each side, and that gives the State the opening and conclusion, but with no two arguments together." There is no merit in this ground of the motion.
2. The fifth special ground complains that the court erred in failing to instruct the jury on the law of involuntary...
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...defendant cite a number of cases upon which they rely for a reversal based on these special grounds. Those cases are: Cain v. State, 39 Ga. App. 128 (2), 146 S.E. 340; Jackson v. State, 43 Ga. App. 468, 159 S.E. 293; Thomas v. State, 47 Ga. App. 237 (3), 170 S.E. 303; Smith v. State, 50 Ga.......
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Randolph v. State
...of the instant case. All but two of them involve homicides where no deadly weapon per se was used. Two of them, Jackson v. State, and Cain v. State, supra, involved a gun, but the guns in those two cases were not, as here, being used in the usual and ordinary manner to kill. In the Jackson ......
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Hagin v. State, 34021
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