Darby v. The State Of Ga.

• Decision Date: 31 March 1887
• Parties: Darby. vs. The State of Georgia.
• Court: Georgia Supreme Court

79 Ga. 63

Darby. vs. The State of Georgia.

Supreme Court of the State of Georgia

MARCH TERM, 1887.

Criminal Law. Dying Declarations. Murder. Charge of Court. Attorney and Client. Verdict. Before Judge Simmons. Bibb Superior Court. October Term, 1886.

Reported in the decision.

J. G. Blount; Hardeman & Davis, for plaintiff in error.

Clifford Anderson, attorney-general; John L. Hardeman, solicitor-general, for the State.

Blandford, Justice.

Darby was indicted for murder in the superior court of Bibb county, and was tried, found guilty, and sentencedto imprisonment for life in the State penitentiary, the jury having so recommended. He made a motion for new trial on various grounds, which the court overruled; and he excepts to that judgment and assigns the same as error.

1. The first objection is, that the court erred in admitting the testimony of Anna Rittenberry, that her husband, James Rittenberry, the deceased, stated that the cause of his death was a wound in the bowels. It appears from the record that there was no objection to the testimony, certified by the judge. The testimony was admitted on the ground that this was a dying declaration of the deceased. It was shown by the evidence that he was in articulo mortis when he made this declaration, and that he had been advised by his physician that he must die. But this testimony could not have affected the result in this case; for the uncontradicted testimony of the three witnesses who saw the homicide makes out a clear and unqualified case of murder. According to the testimony of these witnesses, the deceased and the defendant were engaged in a quarrel; the defendant was heard to say, "You damned son of a bitch, you have not paid that account"; and thereupon they both pulled out their knives; some other altercation took place, and the deceased said to the defendant, "Let's go and see him about it"; the deceased shut up his knife and put it in his pocket, and they walked on, the defendant having his knife in his hand; after going a short distance, defendant struck the deceased with his fist, and immediately stabbed him with the knife; and this produced his death. There is no testimony to the contrary of this; there is nothing in the record that justifies even a suspicion of its falsity in any particular whatever. So we do not think that the testimony objected to in this ground of the motion should be considered as material. But whether material or not, it was properly admitted under the law, it having been shown that it was a dying declaration.

2. The defendant also objected to the admission of testi-mony that the deceased said that the defendant cut him and that he had done nothing to cause it. It was objected that this was a conclusion. It seems to us that it was a question of fact whether he did anything or not. It is an every-day occurrence to ask witnesses in court what the parties did, and for the reply to be made that one of the parties did a certain thing and the other did nothing. We do not think there is anything in that ground.

3. The next ground of objection is, " Because the court erred in the following charge to the jury: 'Were the circumstances surrounding Darby at that time such or not? Look and see what they were, where they were standing when they first met, what they were doing. Did they draw their knives and did they attempt to use their knives? Did they keep their knives open and walk down the street, or did one shut up his knife and the other keep his open? At the time of the cutting were the circumstances which surrounded Darby sufficient to excite the fears of a reasonable man?' " We see no error in that charge of the court. It called the attention of the jury to the particular circumstances which surrounded the accused at the time the cutting was done, and this was proper.

4. The next ground is that the court erred in the following charge: " At the time of the cutting, were the circumstances which surrounded Darby at the time sufficient to excite the fears of a reasonable man? Were they sufficient to make him believe, and did he believe, that this man was going to cut him, and did it appear that the danger was so urgent and pressing at the time of the killing that, in order to save his own life, the killing of the other was absolutely necessary?" In view of the facts in this record there was nothing wrong in that charge. These facts are uncontradicted. It appears that Darby was as willing to go into the difficulty as Rittenberry, the deceased; and more so. Indeed, the testimony shows that he gave the first offence, that he was the assailant, that he said to the deceased, " You damned son of a bitch, youhave not paid that account." That was the first insult. And after they went off together, and the deceased had shut his knife and put it in his pocket, the defendant kept his in his hand, open; and then struck the deceased with his fist and cut him with the knife. Indeed, this charge is more favorable to the accused than he had any right to expect; because the court gave in charge a section of the code that applies to justifiable homicide, that is to say, homicide in defence of one\'s person. But this is not that kind of case. In order to make out homicide se defendendo, that...