Cone v. State, 13931.

CourtSupreme Court of Georgia
Citation18 S.E.2d 850
Docket NumberNo. 13931.,13931.
PartiesCONE. v. STATE.
Decision Date22 January 1942

18 S.E.2d 850


No. 13931.

Supreme Court of Georgia.

Jan. 22, 1942.

[18 S.E.2d 850]

Rehearing Denied Feb. 13, 1942.

[18 S.E.2d 851]
Syllabus by the Court.

1. None of the evidence tended to show justifiable homicide, and the failure of the court to charge the jury on that subject was not erroneous.

2. If the defendant admits the killing and in doing so states reasons for his commission of such act, and if the reasons given are insufficient to show any justification or mitigation, the statement amounts to a confession. Accordingly, where the defendant himself offered in evidence a writing which he contended was a true copy of a statement made by him at a coroner's inquest, and in which it appeared that the defendant admitted the killing and in the same connection stated reasons for his act, none of which showed justification or mitigation, it was not cause for a new trial that the judge in admitting such statement in evidence said, in the presence of the jury, that the statement was admitted "as a part of the defendant's confession, " such statement by the judge being as a matter of law a correct characterization of the writing itself and there being evidence of other statements, amounting to confessions, freely and voluntarily made by the accused and evidence of no statement indicating justification or mitigation.

3. There was no error in refusing to allow counsel for the defendant to interrogate witnesses as to the character of the deceased for violence, where there was nothing to show that the deceased was the assailant and that the defendant was seeking to defend himself.

4. The judge charged to jury as follows: "Malice is implied from a deliberate act, however sudden. In this connection I charge you this: A man who can voluntarily shoot or stab is capable of entertaining and acting from malice, unless he can plead some infirmity besides drunkenness. To be too drunk to attempt to kill, he must be too drunk to cut or stab. Intent to kill is only necessary to amount to legal malice." The exceptions to this charge do not bring in question the correctness of the first sentence, and in view of the charge as a whole none of the exceptions taken thereto shows substantial error.

5. The judge also gave the following charge, of which complaint is made: "Malice is a state of the mind, and intention to kill under such circumstances as the law does not justify nor in any degree excuse if the killing occurs as intended. You will see from this that there must be a deliberate purpose to take human life; the mind must be made up to act; it must have arrived at the conclusion to kill; but it is not necessary that the deliberate intention to take life should exist for any particular length of time before the killing. If it enters the mind of the slayer the moment before he inflicts the mortal wound, that is sufficient. If it is deliberate, intentional, at the time he makes up his mind to kill; and if it exists only that length of time, it is sufficient in law. A man may form the intention to kill, do the killing instantly, and regret the deed as soon as done. Legal malice is not necessarily ill-will or hatred; it is an unlawful intention to kill, without justification or excuse." Held: Considering the entire charge, this excerpt was not erroneous for the reasons that it (a) contained conflicting definitions of malice; (b) excluded all idea of passion or mitigation, and (c) was argumentative. Nor was it erroneous for other reason assigned.

6. The instructions on the subjects of drunkenness and insanity of which the defendant complained were not confusing or argumentative, as contended. The court did not err in refusing a new trial.

[18 S.E.2d 852]

Error from Superior Court, Thomas County; W. E. Thomas, Judge.

Howard Cone was convicted of murder, and he brings error.


Howard Cone was indicted for murder in the killing of Roy Tucker by cutting and stabbing him with a knife, on June 22, 1941; and was convicted of that offense, without a recommendation. His motion for new trial was overruled, and he excepted. Only the special grounds of the motion are insisted on in this court.

According to the evidence, the defendant and the deceased lived in the same community in Thomas County, and were seen together during the afternoon of the date alleged in the indictment, once at Tucker's home, and at another time in a road nearby.

J. G. Hough, a deputy sheriff, testified that on receiving information from D. B. Quick, who lived in the same community, that Roy Tucker had been killed, the witness went to the home of Tucker and there found his dead body lying on a bed. According to the testimony of this witness and of others, the head of Tucker had been entirely severed from his body, and his body had been split open in front all the way from neck to crotch. The defendant had told Quick that he had killed Roy Tucker, and that he wanted him "to get the law." As to the circumstances of this conversation Quick testified: "I had been to the Dillon Presbyterian Church that night and was on my way back home. * * * I saw Howard Cone in the road. * * * He was standing in the road, and I had to stop. He would not move out of the way. He motioned to me after I stopped, and I turned around and saw there was something the matter. He was just as bloody as could be. * * * I asked him what was the matter, and he said he was in trouble, serious trouble, and he wanted me to get the law. * * * He said he had killed a fellow. I asked him whom did he kill, and he said, 'I don't want to tell anybody.' I said, 'I would like for you to tell me.' He said, 'I will tell you, but I am not going to tell anybody else. I killed Roy Tucker dead as hell.' I told him to go ahead home, that I would go and get the sheriff, which I did." The witness further testified that this conversation occurred about two hundred yards from Roy Tucker's home.

Other testimony of J. G. Hough was as follows: "Upon discovering Roy Tucker's body I closed the house and went to where the defendant, Howard Cone, was. * * * I found the defendant at home and arrested him there. He was just as bloody as could be. He looked like he had been butchering a hog or something. I searched him at that time, and found a big knife on his person. It was bloody too. * * * He said that he had killed Roy Tucker, * * * and that was the knife he used. * * * I was present the next day at the coroner's inquest when the defendant, Howard Cone, made a statement. He said, 'Well, it is done, it can't be undone now.'" The witness further testified that at the time of the arrest the defendant stated that "they were fighting in the kitchen, and they got over that fight and settled that, and went in and laid down on the bed, and said they got to arguing again, and he took his knife out and cut his throat first and then cut his head off. That is the statement that he made to me when I went out to arrest him. I testified to that at the inquest. At the inquest he said, 'It is done done now.' I don't know if that is all I heard him say at the inquest, but I heard him say that. I did not hear him say a word about having a fight with Roy Tucker after they went to the negro house. We asked him if Roy Tucker was asleep, and he said no. We asked him if Roy had a knife, and he said no * * * I also examined the kitchen of the Tucker home. The kitchen and dining-room are parts of the same room. As already stated, it was a two-room house. I did not notice anything in the kitchen, either around the stove or the dining-room or anywhere in the kitchen, that would indicate any disturbance or any trouble in there. I did not pay any particular attention to it, but nothing looked like anybody had had a fight in there. There was nothing in the bedroom that would indicate that there had been a fight in there, other than what I have already told." In another portion of his testimony, the same witness stated that at the time he arrested the defendant he asked the defendant "why he severed the head and mutilated the body. * * * He said he did not know." Also, that the defendant appeared to have been drinking.

C. M. Dixon, sheriff, testified that a few days after the defendant was incarcerated he stated that he and Tucker purchased and

[18 S.E.2d 853]

consumed several quarts of wine during the afternoon. Also, "He then told me about the killing. He said he did not have a thing against Roy Tucker. He said they had been drinking, and that he had cut and killed him. * * * Howard Cone made a statement before the coroner's jury. He did not say, 'It is done done now, and I can't help it.' When they got through with the witness he looked like he wanted to say something, and when they got through with the witness I asked him if he wanted to make a statement, he got up and said, 'It is done done.' I asked him if Tucker had a knife, and he said he did not. I asked him if he was asleep, and he said 'No.' I did not say they had a fight at a negro house. There was not anything said or any statement made about a negro house."

Being handed the official report of the coroner's inquest, the witness, by request of defendant's counsel, read from it the following: "Statement of Howard Cone: 'It is done now, and I can't help it. We had a fight after we went to the negro house. We were fighting, and I cut his throat first. I don't remember who started the scrap. He was not asleep on the bed. We were fighting; we started in the kitchen. He did not have a knife when I killed him, so far as I know.'" Continuing, the witness testified: "He did not say they had a fight at a negro house, there was not anything said about a negro house, that I remember."

E. Carlton testified that about the middle of the afternoon, the witness saw Roy Tucker near the latter's home; that "he and Johnny Odum were out there talking and Roy Tucker was drunk. He was sitting there at the gap that led into the road, talking. He did not have anything in his hands at that time, but he...

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