Cooper v. State

• Decision Date: 18 February 1936
• Docket Number: 10853.
• Citation: 184 S.E. 716,182 Ga. 42
• Parties: COOPER v. STATE.
• Court: Georgia Supreme Court

184 S.E. 716

182 Ga. 42

COOPER v. STATE.

No. 10853.

Supreme Court of Georgia

February 18, 1936

Rehearing Denied March 20, 1936.

Syllabus by the Court.

1. Declarations by any person in the article of death who is conscious of his condition, as to the cause of his death and the person who killed him, shall be admissible in evidence in a prosecution for the homicide. Code of 1933, § 38-307.

(a) In the instant case there was sufficient evidence to show that at the time of Chappell's declarations to his wife "several days" before his death, he was in the article of death and conscious of his condition. In these circumstances his declarations to his wife were admissible to be considered by the jury under proper instructions from the court on the law of dying declarations as mentioned in that provision of the Code stated above.

(b) In his declarations to his wife the declarant made such references to his prior declarations to the officer as to make them a part of the declarations to his wife, and to render them admissible as a part thereof, whether or not, on account of the long lapse of time before death, they would have been admissible if considered alone.

2. In connection with the evidence as indicated in the first division, the court admitted in evidence a photograph, over the same objections that had been urged to the admission of the declarations made to the officer, and upon the further grounds that (a) "it tended to put the defendant's character in issue, * * * for the same reason that the picture itself showed on its face that it was a picture from what is commonly known as the Rogues' gallery, and that the jury would know from said picture that the defendant was an ex-convict (the numbers on said picture were concealed, as is shown by said picture in the record)"; (b) "that to undertake to identify the defendant by a picture would be the use of secondary evidence, which would be in the nature of hearsay, and that for the deceased to look at something that some photographer or some photographer's machine had said is a likeness of the defendant would be like some individual describing the man to the deceased and then allowing the deceased to identify that description as being the defendant." The court did not err in admitting the evidence over the objections stated.

3. The general rule is that, on a prosecution for a particular crime, evidence which in any manner shows, or tends to show that the accused has committed another crime wholly independent from that for which he is on trial, even though it be a crime of the same sort, is irrelevant and inadmissible; but to this rule there are several exceptions. Among them is the admissibility of evidence showing, or tending to show, the commission of crimes other than that for which the accused is on trial, for the purpose of showing motive, plan, or scheme. The evidence referred to in the corresponding division of the opinion was of such character as to come within the exception above noted, and was admissible for the purpose of showing a plan and motive and to identify the defendant as perpetrator of the crime in question.

4. The charge to the jury dealt with in the corresponding division of this opinion was not erroneous for the reasons assigned.

5. The charge of the court as set forth in the first division of this opinion, and complained of in the ninth ground of the motion for a new trial, was a correct statement of the law applicable to the case. The omission, without appropriate requests, to give further instructions on the same subject as now complained of, if they would have been proper, is not cause for reversal.

6. The evidence was sufficient to support the verdict, and there was no error in refusing a new trial.

Error from Superior Court, Fulton County; G. H. Howard, Judge.

Charles M. Cooper was convicted of murder, and he brings error.

Affirmed.

Len B. Guillebeau and Ellis McClelland, both of Atlanta, Howell Brooke, of Canton, and W. O. Cooper, Jr., of Macon, for plaintiff in error.

John A. Boykin, Sol. Gen., J. Walter LeCraw, and E. A. Stephens, all of Atlanta, M. J. Yeomans, Atty. Gen., and B. D. Murphy and Jno. T. Goree, Asst. Attys. Gen., for the State.

ATKINSON Justice.

James T. Chappell was employed in the plant of a business enterprise located on the east side of West Peachtree street in Atlanta, slightly north of the intersection of Third street. At the southwest corner of those streets was a grocery store, adjoining which on the south was a drug store, both facing West Peachtree street. At the edge of the sidewalk in front of the grocery store was a letter box. About 6 o'clock in the evening of November 4, 1932, Chappell at the close of business walked across the streets for the purpose of obtaining a newspaper at the drug store and mailing some letters, intending to return to his automobile in which his wife was waiting on the east side of West Peachtree street between the place of business and Third street, and to go to his home. At the letter box he came in contact with a stranger, and both men were seen standing in front of the grocery store and near the letter box engaged in conversation. Mrs. Chappell several times sounded the automobile horn as signals for Chappell to come. As he was in the act of leaving for his automobile, the other man shot him with a pistol and fled west on Third street to a waiting automobile, which he entered and passed out of sight, continuing west along Third street. Chappell fell on the sidewalk and immediately afterwards, when his wife reached him, exclaimed: "A man has held me up! I have been shot! Call Jack Loyless [the superintendent of the plant] and the police, and take me to the hospital. * * * I cannot feel in my leg." Just before the shot was fired, Chappell, in an apparent condition of restraint, was seen by a person passing him and the man, and was heard to say to the man: "I don't know anything about it." Chappell was carried to the Crawford Long hospital. On November 7, a police officer exhibited several photographs to him, one of which he declared to be a photograph of the person who shot him. The picture was known by the officer to be a photograph of Charles M. Cooper. The bullet entered the body just below the left armpit, passed through the lung and the spinal cord, immediately producing paralysis of the limbs and whole body below the middle of the stomach. After detention at the hospital for ten weeks, he was carried to his home, still in his paralyzed condition, where he remained about eight and a half months. His condition becoming worse, he was removed to the Georgia Baptist Hospital on October 1, 1933, where he was retained four days and then sent back to his home in a hopeless condition, where he lingered until he died on October 9, 1933, from the effects of the wound. Cooper was arrested in January, 1934, the officers having made search for him from the day of his identification by photograph as above stated. An indictment was returned on January 26, 1934, against Charles M. Cooper, alias Charles Stanton, charging him with murder. He was tried and convicted on April 26, 1934, and a new trial was granted by the trial court. On his second trial he introduced evidence tending to show an alibi by reason of his absence from Atlanta and his presence in the city of Miami, Fla. (a distance of more than 700 miles and running time 14 hours by automobile), on the 2d and 3d and morning of the 4th day of November, prior to the shooting on the evening of November 4th. As to his presence in Miami on the 3d and the morning of the 4th of November, there was conflict in the testimony of his witnesses. He also made a statement before the jury, in which he declared his continuous absence from Atlanta from June 13, 1932, to November 29 or 30, 1932, being first in Tampa, Fla., and then in Miami, Fla. The state introduced evidence tending to prove its case as hereinbefore outlined, and to identify the defendant as present in Atlanta and as the actual perpetrator of the crime, thus combating the defense of alibi. On November 10, 1934, the jury returned a verdict finding the defendant guilty, without any recommendation, and he was sentenced to be electrocuted. He made a motion for a new trial, which was overruled, and he excepted.

1. Three days after the wound was inflicted upon Chappell, and eleven months before his death, a police officer exhibited to him, while in the Crawford W. Long Hospital, certain photographs from which he identified one "as being a picture of the person who shot him." As a witness for the state the officer gave testimony as above, and identified the picture as a picture of the defendant, "taken by our identification bureau." Prior to the offering of this testimony, the wife of Chappell had testified that "several days" before he died her husband, after the doctor had told him he could not get well, talked to her about his condition, "and said he knew he was going to die." And he said what brought about his condition "was a bandit held him up and shot him. * * * That when they got the man whose picture he had identified in the hospital they would have the man who shot him." The testimony of the officer was admitted in evidence over the objection that the declaration to the officer "was not admissible as a dying declaration, because said alleged declarations of the deceased were made, if made, more than eleven months before the death of the deceased, and were not admissible as dying declarations, and were not admissible as a part of the res gestæ, because said declarations, if made, were made about three days after the deceased was shot, and that said alleged declarations were not admissible because they were only hearsay evidence."

In admitting the evidence the judge...