Davis v. State
| Decision Date | 07 November 1901 |
| Parties | DAVIS et al. v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
No error of law was committed, the evidence was sufficient to authorize the verdict, and the newly-discovered evidence was entirely of an impeaching nature. There was therefore no error in refusing a new trial.
Error from superior court, Laurens county; Jno. C. Hart, Judge.
Frank Davis and others were convicted of voluntary manslaughter and bring error. Affirmed.
John R Cooper, W. C. Davis, and B. J. Conyers, for plaintiffs in error.
H. G Lewis, Sol. Gen., for the State.
It appears from the record that Fordham, Davis, Webb, and Haskins were indicted for the offense of murder. Fordham was tried and convicted at one term of the court, and at a subsequent term the others were jointly tried and convicted of voluntary manslaughter. They made a motion for a new trial, containing 41 grounds. Many of these grounds deal with matters trivial in their nature, and are not of sufficient importance to require express mention in this opinion. In several different grounds the same ruling is complained of in different phraseology. After a careful consideration of all of the grounds, we find that the points worthy of discussion may be summed up as follows: (1) That the court charged upon the subject of manslaughter, when the evidence showed that the law of manslaughter was not involved in the case; (2) that the court gave in charge to the jury section 73 of the Penal Code, when the evidence showed that there had been no mutual combat, and no mutual intention to fight; (3) that the court charged upon the subject of conspiracy or common intent upon the part of the defendants to kill the deceased, when there was no evidence to warrant such a charge; (4) that the court charged upon the subject of involuntary manslaughter, when the evidence showed that this offense was not involved in the case; (5) that the court gave an erroneous charge with reference to reasonable doubt; (6) that the court refused to give in charge a certain request; (7) that the court, in the charge, failed to restrict the effect of certain admissions, made by Davis after the homicide to the defendant making them; (8) that the court failed to charge upon the subject of confessions.
The evidence discloses, in substance, that the four persons indicted and Ben Cannon and Oscar, his son, met on July 4, 1900, at a "commissary" belonging to Fordham, one of the accused. They commenced throwing "crack-a-loo" for cider. This sport continued for some considerable time. The person losing treated the crowd to a quart bottle of cider. When the game was over, Oscar Cannon claimed to have saved a half of a gallon of his portion of the cider, and when he and his father were ready to leave he placed this cider in his father's buggy. Fordham objected to this, and, going to the buggy, took the cider out and carried it back into the house. Oscar followed him, and a quarrel and fight ensued between them. Oscar was ready and willing to fight, and declined to discontinue the combat on the advice of his father. In this fight the whole crowd became engaged, the four accused persons taking sides against the two Cannons. The father and son were both knocked down. When the father arose he discovered the four accused persons pursuing Oscar, who seems to have left the house while the father was down. When the father arrived near the place where Oscar had been overtaken, the latter was being beaten by Webb and Fordham. Haskins threw the father down, and Davis threatened to cut his heart out if he breathed. The father became frightened and left the place. When he returned he found his son in a dying condition. This is, in substance, the testimony of the father. Two other witnesses testified that there was a general fight, in which all were engaged, moving from the commissary to the place where the fatal blows were stricken. It was also shown that one of the accused, soon after the fight, remarked in the presence of the others: "We have killed one ___ Cannon to-day, and *** if [Ben Cannon] comes down here we will get another."
1. Under the facts shown, we think the trial judge was fully justified in giving in charge the law relating to the offense of manslaughter. The jury were authorized to infer from all the evidence that Oscar Cannon and Fordham mutually intended to fight, and that the father espoused the cause of his son, while the others took part with Fordham, when the fight became general. Fordham and Oscar exchanged blows when Fordham took the cider from the buggy and carried it back into the house. When they fought and the elder Cannon took sides with his son, the others took the part of Fordham and fought the Cannons until Oscar was overpowered and the father became frightened and left. Under such facts the trial judge would not have been warranted in deciding for himself that the law of voluntary manslaughter was not involved in the case, but very properly submitted the question to the jury.
2. It was also contended that it was error to give in charge section 73 of the Penal Code. The assignment of error made in this connection is that there was no evidence of mutual combat or mutual intention to fight, and that this Code section was therefore inapplicable. We think that even a cursory reading of the above facts will show that the combat was mutual from its inception to its end. There was a mutual fight in the commissary between Oscar and Fordham, and subsequently between the two Cannons and the defendants; and, according to the testimony of two of the witnesses, this was continued after the combatants had left the house, and until the end. The motion does not complain that this section (73) was given in immediate connection with section 70. If this assignment of error had been made, a different question would have been presented. That this was done does not appear from the motion, and we must hold that it was not erroneous to give section 73 in charge to the jury.
3. From the statement of the facts it must be apparent that the jury could find that there was an intent common to these defendants to participate in the fight against the Cannons. Early in the fight Fordham fought with Oscar Cannon, while the other defendants fought with the father. Subsequently the fight became general, the Cannons being pitted against the four defendants. There was therefore no error in charging upon the subject of conspiracy and common intent. Counsel for the plaintiffs in error laid...
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