Cornelious v. State
| Decision Date | 15 October 1941 |
| Docket Number | 13886. |
| Citation | 17 S.E.2d 156,193 Ga. 25 |
| Parties | CORNELIOUS v. STATE. |
| Court | Georgia Supreme Court |
Frank Cornelious, on indictment for murder of Huriah Cornelious committed by shooting with a shotgun, was found guilty without any recommendation by the jury, and was sentenced to die by electrocution. His motion for a new trial, based on the general grounds and ten special grounds, was overruled and he excepted. So far as material to be stated, the evidence for the State tended to prove the crime as alleged in the indictment. The judge failed to charge literally or in substance, Code §§ 26-1006, defining manslaughter; 26-1007 defining voluntary manslaughter; and 26-1008, prescribing punishment for voluntary manslaughter. Complaint is made, in the first and third special grounds of the motion for a new trial, of the failure to charge these sections of the Code, and especially the law of voluntary manslaughter as related to mutual combat, because under the defendant's unsworn statement before the jury, and the evidence, the lesser grade of homicide could have been found by the jury, and if given in charge the jury probably would not have returned a verdict of guilty of murder, without recommendation, which required imposition of the sentence to die by electrocution. The following narrative is substantially gleaned from the evidence independently of the prisoner's statement before the jury, to which is added the substance of the prisoner's statement: Frank Cornelious was a young man, son of Huriah Cornelious (the person slain) and his wife, Dezella Cornelious (48 years old), and lived in the same house with them. They were negroes. The house was about one mile from a 'Colored Baptist Church.' On the night of March 24, 1941, there was at the church what was called a 'box' or 'chicken' supper. There was a 'pasture' behind the church. Down in the woods in this pasture about a half mile from the church and about one and a half miles from the Cornelious home. there was on the date mentioned a gambling game played with dice, called craps, carried on by a number of persons. The game commenced just before sundown, and ended about 8:30 o'clock at night. Essex Axom and Frank Cornelious (the defendant) were participants in the game seated next to each other. A jug of whisky belonging to Frank was on the ground between the two. Near the close of the game a dispute arose between them. Essex, claiming that Frank owed him 'twenty cents on the game,' forcibly took Frank's jug of whisky, and refused his demand to give it up until he paid the twenty cents. As to this, Essex testified that he did not take hold of Frank at the time, and that 'on the man I took his whisky, and I was going to keep it until he paid me.' Also, that Essex also testified that on the above occurrence Frank ran off, saying 'he would be back directly.' Frank went to the Cornelious home. What transpired there is illustrated by the testimony of his mother, thus: Other testimony of Essex was substantially as follows: After Frank left the crap game he [Essex] left to go to his nearby home. He met a number of persons, 'a heap of them,' and stopped to talk. In 'a few minutes people were coming from the church, and we were just standing up there, talking.' Also: from a distance of about thirty-six feet. From another witness it appeared that Huriah died in about ten minutes after being shot, and that the fussing between Frank and Essex at the crap game caused the witness to run away. The State introduced testimony of the sheriff, that Frank stated: 'he shot his daddy and that he was shooting at Essex Axom'; that he also In addition to all the foregoing, the defendant put his general character in issue, and introduced witnesses who testified without contradiction that it was good. In his statement before the jury, not under oath, the defendant stated that he shot Essex twice, and did not see his father or know of his presence; that he had left his father at home asleep; also that while sitting on the porch of a restaurant Other facts sufficiently appear in the opinion.
H. F. Griffin, Jr., and Jas. D. Shannon, both of Jeffersonville, for plaintiff in error.
J. Eugene Cook, Sol. Gen., of Wrightsville, Ellis G. Arnall, Atty. Gen., E. J. Clower, Asst. Atty. Gen., and C. E. Gregory, Jr., of Decatur, for defendant in error.
1. In order to reduce the homicide from murder to voluntary manslaughter, as relates to the doctrine of mutual combat, it should affirmatively appear that at the time of the homicide both parties were in position and manifested intention to fight. Mere threats on the part of one party at the time of a fatal shot by the other will not suffice. Tate v. State, 46 Ga. 148; Holland v. State, 166 Ga. 201, 142 S.E. 739; Brown v. State, 168 Ga. 671, 148 S.E. 583; Carter v. State, 171 Ga. 406(2), 155 S.E. 670. The evidence in the instant case failed to show voluntary manslaughter as relates to the doctrine of mutual combat. It was not erroneous as complained of in the first special ground of the motion for a new trial for the judge to fail to give in charge to the jury the law of voluntary manslaughter as relates to the doctrine of mutual combat.
2. Special ground 3 of the motion for new trial alleges that the court erred 'in failing to charge or refer to or read in said charge to the jury section 26-1006 of the Code of 1933, defining manslaughter, and section 26-1007 of the Code of 1933, defining voluntary manslaughter, and Code section 26-1008, prescribing the punishment for voluntary manslaughter; all said sections being pertinent and applicable to the issue in said case as embodied in the movant's statement and the testimony of Essex Axom; that the said error of the court was harmful and prejudicial to movant, in that he was denied this said theory of his defense which, if considered by the jury, would not have subjected him to a verdict of guilty of murder and sentence of the court to die by electrocution.'
Manslaughter as defined in the Code, § 26-1006, includes the entirely different crimes of voluntary manslaughter and involuntary manslaughter. So also voluntary manslaughter as defined in § 26-1007, and punished as prescribed in § 26-1008, includes voluntary manslaughter where the killing is in the course of mutual combat, or under various circumstances where there is no mutual combat. Consequently the ground of the motion for a new trial quoted above does not more definitely specify wherein it is contended that the court erred than if it had merely stated that the court erred in failing to charge the law of voluntary manslaughter. It fails to specify definitely wherein the court erred, and therefore it is insufficient to present any question for decision. Smith v. State, 125 Ga. 300, 54 S.E. 124; Wilson v. State, 156 Ga. 42, 118 S.E. 427; Burley v. State, 158 Ga. 849(3), 124 S.E. 532; Armstrong v. State, 181 Ga. 538(3), 183 S.E. 67; Norris v. State, 184 Ga. 397, 191 S.E. 375; Bryant v. State, 180 Ga. 238, 178 S.E. 651. See Kennedy v. State 191 Ga. 22, 27, 28, 11 S.E.2d 179.
3. Ground 10 alleges error 'in failing to charge the law of involuntary manslaughter,'...
To continue reading
Request your trial
-
Spencer v. Zant
...waived his jury challenge by waiting until a new trial motion to raise the challenge for the first time, see, e.g., Cornelious v. State, 193 Ga. 25, 17 S.E.2d 156, 160 (1941), those in which the defendant waived his challenge by waiting until his appeal to raise it for the first time, see, ......
-
Williams v. State Georgia
...to the whole panel must be made by way of a challenge to the array at the time the panel is put upon the defendant. Cornelious v. Georgia, 1941, 193 Ga. 25, 17 S.E.2d 156; Wilcoxon v. Aldredge, 1941, 192 Ga. 634, 15 S.E.2d 873, 146 A.L.R. 365; Cumming v. Georgia, 1923, 155 Ga. 346, 117 S.E.......
-
Thacker v. State
...discharged their sworn official duties. Kirk v. State, 73 Ga. 620(3b); Horne v. State, 170 Ga. 638, 640, 153 S.E. 749; Cornelious v. State, 193 Ga. 25, 32, 17 S.E.2d 156; Thompson v. State, 203 Ga. 416, 418, 47 S.E.2d 54. Based on the record in this case we must assume that the jury commiss......
-
Sims v. Balkcom, 22438
...alleged discrimination in making up the jury boxes in the absence of a timely challenge to the jury be reviewable (Cornelious v. State, 193 Ga. 25, 31, 17 S.E.2d 156; Williams v. State, 210 Ga. 665, 667, 82 S.E.2d 217, remanded 349 U.S. 375, 75 S.Ct. 814, 99 L.Ed. 1161, adhered to 211 Ga. 7......