Callahan v. State

• Decision Date: 18 April 1914
• Docket Number: 5420.
• Parties: CALLAHAN v. STATE.
• Court: Georgia Court of Appeals

81 S.E. 380

14 Ga.App. 442

CALLAHAN v. STATE.

No. 5420.

Court of Appeals of Georgia

April 18, 1914

Syllabus by the Court.

The ruling in this case is controlled by the decisions of the Supreme Court in Ledford v. State, 75 Ga. 856 Harrison v. State, 83 Ga. 130, 9 S.E. 542, and Raysor v. State, 132 Ga. 237, 63 S.E. 786. The accused sought to establish an alibi, and the court correctly instructed the jury that it was incumbent on him to prove the impossibility of his presence at the scene of the crime at the time of its commission, and that he was only required to establish this to the reasonable satisfaction of the jury but the court omitted altogether to inform the jury that, if they had a reasonable doubt as to whether the accused had in fact established the alibi, he should be given the benefit of that doubt and should be acquitted. There was no language accompanying the instructions upon the subject of reasonable doubt which extended to and included the testimony as to alibi, as in Shaw v. State, 102 Ga. 665, 29 S.E 477, which was equivalent to and a substitute for a specific direction to the jury to acquit, if, upon a consideration of the proof of alibi along with the evidence as a whole, the jury had a reasonable doubt of the defendant's guilt.

There being nothing in the evidence or in the defendant's statement to dispute the fact that the alleged crime was committed, and the defense of the accused resting solely upon the contention that he did not participate in the offense the trial judge did not err in assuming that a crime had been committed, and his language was not therefore violative of the provisions of the Code (Pen. Code 1910, § 1058; Civ. Code 1910, § 4863).

Even if the instruction of the trial judge on the subject of presumption of malice was erroneous, the error was harmless because the verdict finding the defendant guilty only of the offense of shooting at another evidences that they found that the assault was made without malice.

Error from Superior Court, Murray County; A. W. Fite, Judge.

Joe Callahan was convicted of shooting at another, and he brings error. Reversed.

Wm. E. Mann, of Dalton, for plaintiff in error.

Sam P. Maddox, Sol. Gen., of Dalton, for the State.

RUSSELL C.J.

According to the testimony for the state, the guilt of the plaintiff in error is so manifest that, as individuals, we would be extremely loath to remand this case for another trial.

So far as the evidence is concerned there was only one issue, to wit, whether the accused was present at the perpetration of the crime; and the trial judge did not err in narrowing the consideration of the jury to that issue and in focusing their attention upon it. But, for the very reason that this was the one controlling issue in the case, it was the peculiar right of the defendant to have that issue submitted without error, and not to his prejudice. And it is for that reason, as well as for the reason that we are bound to decide every case according to the law, that, though we are ourselves convinced of the guilt of the accused, we feel none the less constrained by our sense of duty to afford him an opportunity to have his defense presented to the jury according to law. We know that not infrequently alibi is the last resort of conscious guilt, but to affirm a judgment refusing a new trial in this case, where the failure to present the second branch of the defense of alibi, which is supported by evidence, is squarely presented, would commit this court to the holding that one charged with crime is not entitled, as a matter of right, to have the jury, which passes upon his case, plainly told that the doctrine of reasonable doubt extends as well to the reasonable doubt which the jury may entertain upon a consideration of the proof of alibi as to any other phase of the case. This doctrine, which our law in its humanity has incorporated as one of the fundamentals of our jurisprudence, would be of but little avail to a defendant relying wholly upon an alibi and not disputing the commission of the alleged crime, if the doctrine of reasonable doubt be applied only to the evidence tending to show guilt, and if the accused is required to establish his absence from the scene of the crime to the reasonable satisfaction of the jury without any further provision...