Carter v. State

• Citation: 58 S.E. 532,2 Ga. App. 254
• Decision Date: 04 July 1907
• Docket Number: (No. 427.)
• Parties: CARTER. v. STATE.
• Court: United States Court of Appeals (Georgia)

58 S.E. 532
(2 Ga. App. 254)

CARTER.
v.
STATE.

(No. 427.)

Court of Appeals of Georgia.

July 4, 1907.

1. Criminal Law—Exclusion op Evidence —Harmless Error.

The exclusion of evidence offered to rebut the presumption of malice, in a trial for murder, is not cause for a new trial, where the defendant is only convicted of voluntary manslaughter.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 15, Criminal Law, § 3153.]

2. Homicide—Dying Declarations.

That a witness may have made a different statement as to alleged dying declarations, on the examination by the court into their admissibility, from that thereafter made by him in the hearing of the jury, is not ground for excluding his evidence as to such declarations. The injunction that dying declarations are to be received with great caution is directed more especially to the jury than to the judge. The judge, in passing upon the admissibility of dying declarations, determines only whether a prima facie case is presented, conceding the testimony to be true. He does not pass upon the credibility of the witness delivering the testimony. If a witness makes different statements in any respect material to the proof of dying declarations, the jury may discredit him, but the trial judge cannot for that reason withhold his testimony from the jury.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 26, Homicide, § 458.]

3. Criminal Law — Capacity to Commit Crime.

The ability to distinguish between right and wrong in relation to a particular act about to be committed is the general test of criminal responsibility in this state. The only exception so far recognized, as to one who has reason sufficient to distinguish between right and wrong as to the act about to be committed, is where such act is connected with a peculiar delusion under which the prisoner is laboring, and where, in consequence of such delusion and without criminal intent, the will is overmastered. Intermittent insanity, caused by physical weakness or nervous disorders, is no excuse or justification for crime, unless it appears that at the time of the act committed the defendant was incapable of adjudging the quality of the act and of knowing whether it was right or wrong.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 56, 59.]

4. Same—Insanity—Instruction.

Where evidence as to the insanity of a defendant is introduced under the general plea of not guilty in a criminal case, it is the duty of the trial judge to instruct the jury upon the subject of insanity as a defense. In the absence of evidence that the defendant acted under the influence of an overmastering delusion, there was no error in the charge complained of in this case. If fuller instructions were desired, they should have been requested in writing.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 1821, 2007.]

5. Same — Trial — Conduct op Judge —Appeal.

The conduct of the judge towards witnesses will not be controlled, except for such abuse of his authority as would manifestly tend to shape or unduly influence the finding of the jury. The refusal of a trial judge to allow a question to be answered by a witness cannot be reviewed, unless it appears that the answer expected to such question was stated at the time of the ruling complained of.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 15, Criminal Law, § 2932.]

6. Same—Admission op Evidence—Harmless Error.

While testimony that one of the defendant's witnesses or her husband had unlawfully sold whisky should have been repelled upon the objection offered, that such testimony was irrelevant and immaterial, still the error in admitting this testimony is not sufficiently grave to warrant a new trial.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 15, Criminal Law, § 2209.]

7. Same—New Trial.

The remaining assignments of error are without merit.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 15, Criminal Law, § 2328.]

(Syllabus by the Court)

Error from Superior Court, Polk County; Price Edwards, Judge.

Will Carter was convicted of voluntary manslaughter, and brings error. Affirmed.

J. K. Davis, J. M. Hunt, and Bunn & Bunn, for plaintiff in error.

W. K. Fielder, Sol. Gen., for the State.

RUSSELL, J. The plaintiff in error was convicted of the offense of voluntary mau-

[58 S.E. 533]

slaughter. He excepts to the judgment refusing a new trial. The testimony in the case is extremely voluminous, but is substantially as follows: On the part of the state it was shown that after a trial in a justice's court, in which Carter (the plaintiff in error) was one of the parties and the deceased, Reed, was a witness, Reed, in company with several other persons, started from the courthouse toward home. The decision of the justice's court was adverse to Carter. Reed was a witness at the trial, in behalf of one Townsend, who was the opposite party in the suit against Carter. He was perhaps also somewhat interested in the result of the case, and concerned in favor of Townsend. The deceased was over 70 years of age and quite deaf. As he was proceeding homeward with his companions, the party was overtaken by Carter, who walked along with them about 200 yards, during which time Carter charged the deceased with being responsible for the lawsuit against him, and used some vile epithets about the deceased. Perhaps on account of his deafness, the deceased did not appear to have heard Carter's first remarks. A little later Carter and Reed became involved in an altercation, and Carter drew from his pocket a pistol and shot Reed, who was unarmed, except with a small walking cane, and who fell to the ground and screamed. Townsend seized Carter and the pistol, and held him until the pistol was taken from him. The evidence for the state does not disclose that Reed had any weapon of any kind other than the small walking cane; and it was proved that he habitually carried this to walk with. He was picked up, carried home, and undressed, and no weapon was found upon him. As a result of the wound, death supervened four days later. Before his death Reed stated that he was going to die. He made this statement on the night of the difficulty, as well as an hour or two before his death. And after each of these statements, showing consciousness of his condition, he gave his version of the difficulty. The testimony for the defendant, as to the material issues in the case, was squarely in conflict with that for the state. Witnesses on behalf of the defendant testified that Reed made the first advance upon Carter and struck him with his walking stick, and that Reed had a knife in his hand. Some of the witnesses testified that they did not know whether the deceased struck with the knife or not, while others testified that the deceased struck the defendant with the knife and cut his coat upon the shoulder, and that thereupon, while the deceased was still cutting at him with the knife, Carter stepped backward and fired. There was also testimony showing that there was a mutual intent to fight, and that Reed drew his knife and Carter his pistol about the same time. The defendant also attempted to show that he was insane; and testimony was permitted from several witnesses showing that he was at times wild and irrational. He further offered evidence of partial or temporary insanity, of weakness of mind in connection with his weakened condition, and of a distortion of mind in connection with his disturbed nervous condition, and of his habit of taking liquor and narcotics impairing his capacity. The defendant moved for a new trial upon the general grounds, and upon grounds relating to the charge of the court and the failure to charge, as well as grounds relating to the exclusion and introduction of testimony, and to conduct of the court, which is claimed to have been prejudicial to the defendant, and upon the ground of newly discovered evidence.

1. The first ground of the amended motion assigns error...