Duke v. State

• Decision Date: 16 March 1949
• Docket Number: 16461.
• Citation: 52 S.E.2d 455,205 Ga. 106
• Parties: DUKE v. STATE.
• Court: Georgia Supreme Court

52 S.E.2d 455

205 Ga. 106

DUKE v. STATE.

No. 16461.

Supreme Court of Georgia

March 16, 1949

Syllabus by the Court.

1. Where the only evidence offered by the State to establish the defendant's guilt of the crime of murder was the testimony of a witness that the dying person told him that the defendant shot him, and there is no evidence that the deceased knew that he was in a dying condition at the time the statement was made, such testimony was merely hearsay and although admitted without objection, is wholly without probative value, and could have no weight in establishing the facts necessary to convict the defendant of the crime with which he was charged.

2. Where the defendant in his statement admitted that he shot the deceased, but accompanied his admission with an explanation that would negative malice, such a statement could not create a presumption of malice.

3. It was error to overrule the general grounds of the motion for new trial.

Harold Duke was convicted of the murder of C. B. Thompson, with a recommendation of mercy. His motion for new trial, on the usual general grounds, was amended by the addition of two special grounds, the first assigning error because the court refused a continuance of the trial, and the second setting out newly discovered evidence. The exception here is to the overruling of the motion for new trial, as amended.

The entire evidence in the case as disclosed by the record was as follows:

John B. Brooks testified, on direct examination by Mr. Stark 'As sheriff I was called on April the 13th, 1947, to the home of Harold Duke, which was in Jackson County, Georgia. I was at Pendergrass and Mr. Reynolds was trying to call me, and I saw him and he said a negro had got shot out at Harold Duke's, and I went out there to the house, and Jennie Duke was in there and C. B. Thompson was there in the house. He was sitting in a chair and Jennie was working on him. He had been shot in the breast with a shotgun. He was able to talk and said Harold Shot him, is all. Q. Did he say why? A. No, he didn't say. He had no weapon on him. I didn't know where Harold was, but he wasn't there. I picked up C. B. Thompson and carried him and put him in the car and started to the doctor with him. He was bleeding. I thought he had a red shirt on but it was blood. He died between Pendergrass and Commerce in the car with me. He was shot right here (indicating his own breast). He was weak when I talked with him, he was wet with sweat. I asked him who shot him, and he said Harold Duke, and I asked him why, and he said he didn't know. This was in Jackson County, Georgia. The negro they called Cabin got the gun. Mr. Park brought Harold Duke to jail the next morning. I looked for him that night but didn't find him. The girl Jennie didn't make any statement to me, only 'Do something for my uncle.' I couldn't say how long it had happened when I got there, but it couldn't have been over five or ten minutes. She (Jennie) did not tell you how it happened. A. No, sir. Q. Did she say anything? She just told me to do something for her uncle. Her uncle told me Harold Duke shot him. I think C. B. Thompson was living with Harold Duke. The shot gun was a 410. The shot from the gun killed C. B. Thompson.'

This witness testified, on cross-examination by Mr. Westmoreland: 'This took place around 8 o'clock. Church was still going on. I didn't hear the shot. The house was close enough to the church to have heard the shot had you been listening. Mr. Park lives about a half mile from the house. I didn't go to Mr. Park's house. Mr. Park brought him down the next morning.'

Cleveland Thompson swore, on direct examination by Mr. Stark: 'My name is Cleveland Thompson, and the prosecutor in this case, C. B. Thompson was my brother. My brother was living at Harold Duke's when he got killed. Harold Duke married our sister. He had been staying at Harold's about four (4) months. He was boarding there. I had heard of no trouble they had had. I saw my brother down here at the undertaker's shop after he was shot. He was dead. I had seen him that evening at Pendergrass. Nothing was the matter with him. I saw the hole down here at the undertaker's in his chest.'

The defendant's statement was as follows: 'Well, sir, he was my brother-in-law. Well, on that Sunday afternoon, he had been staying with me quite some little bit, boarding there. Me and him was just sitting down there as I say about three or four o'clock and just sitting there. Wife was getting supper, what we call late dinner on Sunday, and we was just sitting there and he had hung his head down, and I shook him and woke him up and I asked him, 'What about you just boarding yourself, it'd be a heap cheaper on you to board yourself than for me to feed you, I ain't got the money to feed you;' and he jumped up and wanted to cut me, and my wife was in there, and she said, 'What's the matter?' and I said, 'Nothing, he wanted to cut me here,' and I just walked on out the door, and when she got dinner done I told her we'd drive off down the road and maybe get all right, and we rid on down to Jefferson here, and we got back time enough to milk and to the things; well, we done up the things, and I was setting there fixing to go to bed, had off my shoes, and he came in there and when he come in the door he had his knife in his hand, and he was so drunk he couldn't hardly stand up and he fell up against the mantle piece, and he had the knife in his hand and he asked me, what in the God damn hell I was trying to run over him for, and I told him I wasn't trying to run over him, and he said I was, and I was still going on to bed and I told him to go to bed, and we'd talk this over tomorrow, and he said, 'I ain't going to talk over no God damn thing,' and he made at me with that knife, and I was sitting up against the wall this way, and my wife was in there and she grabbed him, and he had cut across my wife to get me, and on account of her baby she couldn't hold him, and he got loose and made at me again, and I had to shoot him, and that's when I shot him, gentlemen. I had to shoot him and I didn't want to do it, but just had to do it.'

George W. Westmoreland, of Jefferson, for plaintiff in error.

Hope D. Stark, Sol. Gen., of Lawrenceville, Eugene Cook, Atty. Gen., and J. R. Parham, Asst. Atty. Gen., for defendant in error.

HEAD Justice.

The State's case rests entirely upon the testimony of Sheriff J. B. Brooks, since the testimony of the other witnesses sworn for the State, Cleveland Thompson, does not purport to state any fact pertaining to the homicide. In so far as the record shows, no objection was interposed at any time to the testimony of the sheriff. If the statements of the deceased as testified to by the sheriff were dying declarations as provided by the Code, § 38-307, they were properly admitted in evidence. Hawkins v. State, 141 Ga. 212, 80 S.E. 711; Fitzpatrick v. State, 149 Ga. 75, 99 S.E. 128. However, if the testimony of the sheriff did not make a prima facie case of a dying declaration, his statements amounted to no more than hearsay.

From a consideration of the testimony of the sheriff, it will readily be seen that the deceased made no statement tending to show that he was conscious of the fact that he was in the article of death, and there is nothing in the record to show that such statements as were made by the deceased were 'in view of impending death and judgment, when the last hope of life is extinct,...