Davis v. State
| Decision Date | 17 June 1922 |
| Docket Number | 2919. |
| Citation | 113 S.E. 11,153 Ga. 669 |
| Parties | DAVIS v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
The demurrer to the indictment contains five grounds, as shown by the statement of facts. None of the grounds of this demurrer are meritorious, and the court properly so held. One ground of the demurrer complains that it is not alleged in the indictment "that the killing of the deceased by the defendant was unlawful." The word "murder," as used in this connection in the indictment, has a clear legal meaning. It is not a mere conclusion. The statute law, as found in Pen. Code 1910, § 60, declares: "Murder is the unlawful killing of a human being, in the peace of the state by a person of sound memory and discretion, with malice aforethought, either express or implied." In each count the means and methods employed in the killing are alleged and in each count the charge concludes with the allegation that the defendant did the things charged against him "contrary to the laws of said state." Compare Coxwell v. State, 66 Ga. 309; O'Neil v State, 116 Ga. 839, 840, 43 S.E. 248; Badger v. State, 5 Ga.App. 477, 63 S.E. 532. The other grounds of demurrer do not require discussion.
A juror in a criminal case who is not related either by consanguinity or affinity within the ninth degree to the prosecutor, ascertained according to the rules of the civil law, is a qualified juror. Crawley v. State, 151 Ga. 818 (3), 821, 108 S.E. 238. The supplemental brief of the plaintiff in error contains this statement: "If the relation of the juror to the prosecutor is to be determined by the civil law, then the juror is not related within the prohibited degree." Under this stipulation this ground of the motion for a new trial is without merit.
One ground of the amended motion complains that the court erred in charging the jury as follows: "If, after you have examined all of the evidence in this case and the statement of the defendant, your minds are unsatisfied, unsettled, wavering, and you cannot, as honest men, viewing this transaction as you do any ordinary transaction, come to a conclusion beyond a reasonable doubt that the defendant is guilty, you ought to acquit him." Considered with the context of the charge, the use of the words "ordinary transaction" does not amount to error. Immediately preceding the excerpt quoted the court charged as follows: "Juries, in their judgment in criminal cases, occupy the same position as other searchers after the truth, with but one exception: The presumption is in favor of innocence, and the guilt of the defendant must be proven beyond a reasonable doubt; but the rules of belief and the grounds of confidence are the same as in other cases, and the principles of common sense are just as controlling as in other cases." The effect of the charge on this subject, as a whole, was simply to impress upon the jury that in order to convict the defendant they must, as honest men searching for the truth, be convinced of his guilt beyond a reasonable doubt.
The sixth ground of the motion complains that the court erred in charging the jury as follows: "The law presumes every intentional homicide to be malicious until the contrary appears from circumstances of alleviation, excuse, or justification, and it is incumbent on the prisoner to make out such circumstances to the satisfaction of the jury, unless they appear from the evidence produced against him." The error assigned is that the charge is inapplicable and irrelevant to any of the issues involved in the case; because the defendant did not set up any defense of alleviation, excuse, or justification for the homicide; because the charge tended to mislead and confuse the jury; because it presupposes, intimates, and amounts to an expression of an opinion on the part of the court that the defendant killed the deceased. The charge did not amount to an expression of an opinion, nor was it error for any of the other reasons assigned.
The seventeenth ground of the amended motion complains that the court erred in permitting a physician sworn as a witness for the state to testify as follows: "His mouth [referring to deceased person] could be opened, and you could pour water in there and fill the trachea." This evidence was testimony of an expert, and related to facts coming within his own knowldge; and the evidence was material and admissible, and it was not necessary that the question propounded should be hypothetical in its character to render it so.
In the eighteenth ground of the motion movant complains that a physician was permitted to testify as follows: The objection was that the evidence "was a bare repetition of the witness of statements contained in the authorities, and was not based upon either his experience or information found on research, and having the effect of injecting into the case the bare unsworn statement of some unknown writer." The trial judge, in a note to this ground of the motion, sets out in detail what occurred in regard to the admission of this evidence; and it appears that the court did not rule on this objection at the time, stating that counsel could take it up later before the case was concluded, and that no further motion was made in reference to the testimony. Under repeated rulings of this court, it became the duty of counsel to renew his request and obtain a ruling before the case was concluded. Having failed to do so, no issue is made.
In the nineteenth ground movant complains that the court erred in permitting a physician to testify as follows: The objection was that "one of the questions at issue in the case was the deceased, William H. Hall, had been drowned, and that a witness, even though an expert, could not decide the very issue that the jury was called upon to pass." It was competent for a medical expert, especially one who had performed an autopsy on the deceased, as in this instance, to give his opinion as to whether or not the deceased was drowned.
In the twentieth ground movant complains that the court permitted a physician to testify as follows: The criticism is that the question assumes the issue to be tried by the jury, and also that the facts upon which the hypothetical question was based were not full and complete. In propounding a hypothetical question such as the above, all of the facts may be grouped together; but it is not essential to the admissibility of evidence that there should be a complete résumé of every fact entering into and involved in the case. The omission to state any necessary fact may be shown on cross-examination as a reason for discrediting the answer or affecting its probative value, and a more complete grouping of the facts involved might have been framed in propounding another hypothetical question embracing such additional facts. It is not always possible to group all of the facts in framing a single hypothetical question. No error is shown in this ground of the motion.
In the twenty-first ground of the motion complaint is made that the court erred in permitting a witness for the state, an expert chemist, to testify as to the result found by him in making a chemical analysis of the stomach of the deceased. The objection is to the testimony of the witness as a whole, and is based on the contention that the stomach was so handled that it did not appear that it had been free from contamination or from having substances put into it, or an opportunity that it be done. This ground of the motion shows, from the evidence of other witnesses who handled the contents of the stomach from the time it was taken from the body of the deceased to the time of its delivery to the chemist, that the evidence was not inadmissible for the reason assigned.
The twenty-second ground of the motion assigns error on the admission in evidence of an insurance policy on the life of Wiley S. Smith, jointly indicted with the accused, and an assignment of the policy by the insured to E. E. Coleman, also jointly indicted with the accused; also a receipt signed by Coleman, surrendering and terminating the policy and all rights and benefits thereunder on a refund of the premiums. The evidence in the case showed that Smith and Coleman were present at the time of the alleged homicide, and the attendant facts and circumstances authorized the jury to find that both of them were implicated in the conspiracy to kill the deceased. Under these circumstances, it was not error to admit the insurance policy in evidence.
The thirtieth ground complains that the court erred in charging the jury as follows: "A person shall not be found guilty of any crime or misdemeanor committed by misfortune or accident." The evidence showed that the deceased came to his death while out on an...
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