Davis v. State

• Decision Date: 17 November 1948
• Docket Number: 16405.
• Parties: DAVIS v. STATE.
• Court: Georgia Supreme Court

50 S.E.2d 604

204 Ga. 467

DAVIS v. STATE.

No. 16405.

Supreme Court of Georgia

November 17, 1948

Syllabus by the Court.

1. There being ample evidence to support the verdict of the jury, the general grounds of the motion for new trial are without merit.

2. The act approved March 28, 1935 (Ga.L.1935, p. 396), is not unconstitutional for the reasons assigned.

3. Preliminary proof offered by the State was sufficient to establish a prima facie foundation for the admission of a statement made by the deceased and offered by the State as a dying declaration; and the trial judge did not err in the admission of the evidence over objections urged by counsel for the accused.

4. The charge of the court on dying declarations was not subject to the criticisms against it.

Thomas Davis was indicted and tried for the murder of J. W. Carter. The jury returned a verdict of guilty with a recommendation of mercy.

On the trial, evidence in behalf of the State tended to show: The accused and the deceased had had considerable trouble over crops growing, and work performed, on a farm owned by the deceased, on which the accused worked as a share-cropper. On the day of the homicide, November 18, 1947, the accused and several of his children were hauling corn in a wagon from a field. They had hauled one load of corn and placed it in a crib belonging to the deceased, and were leaving the field with another load, when the homicide occurred. On reaching the field gate, they found the deceased at the gate, nailing the gate shut with a piece of iron. The accused told the deceased to open the gate, and the deceased failed to do so. Thereupon, the accused reached into the wagon, got a shotgun and shot the deceased, the load of shot almost severing the decedent's right arm. The deceased then ran toward his house. He had reached the gate to his yard, about thirteen steps from the field gate, and was attempting to open the gate with his back toward the accused, when the accused shot him again, the load of shot striking the deceased in the back and severing his spinal cord. After the shooting the deceased's right arm was amputated; and about ten days later he died as a result of the shot in his back.

The foregoing is, briefly, the case as made by the State. No witnesses testified for the accused, but he made a lengthy statement to the jury, in which he detailed the various difficulties between him and the deceased over a division of crops and the failure of the deceased to pay him and his family for work performed on the farm. The defendant then gave the following account of the homicide: 'When I went back to gather the corn and finish hauling the corn that I had broke down in the field well, during the time that we went in at the gate and until we come back to the gate Mr. Carter had nailed the gate up. The threats Mr. Carter had made to me and to others was the reason why I carried my gun along--was to protect the lives of my children and myself if it was necessary. When we come back to the gate Mr. Carter had nailed that gate.' The defendant stated that the deceased left his porch with a piece of iron and went to the gate, where the defendant's son was trying to unlatch the gate, and cursed and abused the defendant and his son and threatened to kill his son. The defendant further stated: 'He reached over the fence with his left fist and knocked my boy on the back part of his head and knocked him down and reached out to hit him, and when he did that I run over there on the load of corn and got my gun and loaded it, and as I had loaded my gun my boy was staggering around getting up--you know, senseless--and then he reached to hit him, strike him with the piece of iron, and I shot him in his right arm to prevent him from hitting my child with a piece of iron, and I didn't want to kill Mr Carter * * * Then when I had shot the piece of iron out of his hand, he turned around and called to his wife. He says, 'Hand me my gun yonder at the gate,' and turned around and rushed back to the gate * * * and when he reached his gate he opened the gate back to reach in behind the gate-post to get his shotgun. When he asked her to bring him a gun, his wife had run in the house and got a rifle; and he picks this gun up by the gate post and put the stock under his left arm, and cocked that gun. I said to Mr. Carter, 'Throw that gun down,' and he refused, and I reloaded my gun and said to Mr. Carter, 'Throw that gun down,' and as he turned and raised up with that gun in position to shoot me and my children he saw that I had my gun on him, and just as I shot he turned around that way (illustrating), is how he got shot in his back. His wife run to him and took his gun and the rifle that she had and carried [them] to the door step to her daughter named Mary and told her to 'put these guns in the house.''

The defendant's statement of how the homicide occurred was materially different from, and rebutted by, testimony offered by the State. The following testimony given by a daughter of the deceased is illustrative of the evidence produced by the State: 'I remember the morning of November 18, 1947, that my father was shot. I was present then. It happened out there at the gate by the car house, the gate that enters the field. Two shots were fired, the first at the gate entering the field when I was standing on the door steps at the front porch in full view where I could see my father and Mr. Davis. My father was on the outside of the gate, his right hand over the gate, bending the nail down. Mr. Davis was on the wagon, inside the field, on the other side of the gate from my father; he had the gun when he got off the wagon; he shot Daddy with it. My father did not strike one of Mr. Davis's boys or strike at one of them. Then my father went to the gate at the front yard and was opening it when the second shot was fired. He was opening it with his left hand and that threw his back toward Mr. Davis, and at that time Mr. Davis shot him again. Between those two shots, when I saw Mr. Davis loading his gun again, I says, 'Don't shoot. Don't shoot,' and I went to telling Daddy to run. Davis did not answer me; he just shot again and my father fell. My father didn't have anything there at the gate with him. There wasn't a gun there.'

The defendant's motion for a new trial as amended was overruled, and to this judgment he excepted.

R. A. Moore and D. C. Sapp, both of Douglas, and A. J. Tuten, of Alma, for plaintiff in error.

J. R. Walker, Jr., Sol. Gen., of Blackshear, H. J. Quincey and Gibson & Maddox, all of Douglas; Eugene Cook, Atty. Gen., E. L. Reagan and Jno. S. Bell, Asst. Attys. Gen., for defendant in error.

WYATT, Justice.

1. The evidence offered by the State makes a case of murder. There being ample evidence to warrant the verdict, the general grounds of the motion for new trial are without merit.

2. Special grounds one and two of the motion for new trial are based upon newly discovered evidence as to the disqualification of one of the jurors who tried the defendant. These grounds of the motion are supported by the several affidavits required, and disclose that the juror in question was related to the prosecutor within the 9th degree, but not within the 6th degree, as calculated by the rules of the civil law.

Prior to the act approved March 28, 1935 (Ga.L.1935, p. 396), the juror in question would have been disqualified under decisions rendered by this court. But this act, which is now codified as § 59-716 of the annotated Code, reduced the relationship which would disqualify a juror to the 6th degree. The act is entitled 'An Act to further define the qualifications of judges and jurors in all courts of this State, and to define what relationship to interested parties shall disqualify them from serving,' and provides: 'All judges, grand and trial jurors in the courts of this State, shall be disqualified to preside, act, or serve, in any case or matter, when such judge or juror is related by consanguinity or affinity to any party interested in the result of the case or matter, within the sixth degree, as computed according to the civil law, and relationship more remote shall not be a disqualification.'

It is contended by the plaintiff in error that the act is unconstitutional because it is violative of article 3, section 7, paragraph 8 of the Constitution of 1945 (Code Ann. § 2-1908), which prohibits the passage of a law that refers to more than one subject matter, or contains matter different from what is expressed in the title of the act; and article 3, section 7, paragraph 16 (Code Ann. § 2-1916), which provides that no law or section of the Code shall be amended or repealed by mere reference to its title or to the number of the section of the Code.

The first constitutional attack on the statute is not properly raised, and cannot be considered by this court, because, while the statute and provision of the Constitution alleged to have been violated are both specified, the plaintiff in error has failed to show wherein the statute violates the constitutional provision. Price v. State, 202 Ga. 205, 42 S.E.2d 728. Williams v. McIntosh County, 179 Ga. 735(2), 177 S.E. 248.

It is insisted by the plaintiff in error that the second constitutional provision cited is violated by the statute in question because no reference is made in the title to the act of February 28, 1856 (Ga.L. 1855-6, p. 230, Code, § 59-804) which provides that a juror may be objected to upon the ground 'that he is so near of kin to the prosecutor, or the accused, or the deceased, as to disqualify him by law from serving on the jury;' and it is further insisted that no reference is made 'to the decisions of the Supreme Court,' which prior to 1935 had declared that a juror related within the 9th...