Farmer v. State

• Decision Date: 12 June 1893
• Parties: FARMER v. STATE.
• Court: Georgia Supreme Court

18 S.E. 987

91 Ga. 720

FARMER v. STATE.

Supreme Court of Georgia

June 12, 1893

Syllabus by the Court.

1. The killing of another because of a past attempt by him to debauch the slayer's wife is not justifiable homicide. It is only where there is an absolute necessity that a killing be perpetrated, to prevent adultery, that the case will stand upon the same footing of reason and justice with other cases of justifiable homicide, under section 4334 of the Code. Jackson v. State, (Oct. term, 1892,) 18 S.E. 298.

2. The use of grossly improper remarks by counsel for the state in his argument to the jury is not cause for a new trial, when the verdict is fully as favorable to the accused as the evidence would warrant, and when it appears that the presiding judge, upon having his attention called to the misconduct of counsel, promptly ordered him to confine himself to the evidence, which order was obeyed, and counsel for the accused made no motion to have a mistrial declared nor preferred any request to charge the jury on the subject. The court, however, should have unequivocally rebuked the counsel, and instructed the jury to disregard entirely the improper remarks, even without a request. The omission to do this is attributable alone to inadvertence.

3. On the facts disclosed in the record, there was no error in holding a night session of the court, or in the direction given the next morning by the court to the progress of the trial.

4. There was no error, as against the accused, in the charges complained of. The verdict for voluntary manslaughter was fully as favorable to him as the evidence authorized, and the court properly refused to grant a new trial.

Error from superior court, Jackson county; N. L. Hutchins, Judge.

Tom Farmer was convicted of manslaughter, and, his motion for new trial having been denied, he brings error. Affirmed.

The killing of another because of a past attempt to debauch the slayer's wife is not justifiable homicide.

Following is the official report:

Farmer was indicted for murder, and was found guilty of voluntary manslaughter. His motion for a new trial was overruled, and he excepted. The grounds of the motion are as follows:

(1) That the verdict is contrary to evidence, and without evidence to support it.

(2) That the court erred in refusing to charge as follows "Where the defendant justifies the killing upon the ground of self-defense, in order to make good the defense it must appear that at the time of the killing the danger was so urgent that it was necessary for the defendant to kill, in order to save his own life. But, where the defendant justifies the killing upon the ground that the deceased had attempted to debauch his wife, the doctrine that the danger must be imminent at the time of the killing does not apply. You may consider any evidence of indignities offered wife of defendant by deceased prior to the killing, and say whether or not the homicide was justifiable. The statute is that 'all other instances which stand upon the same footing of reason and justice as those enumerated, shall be justifiable homicide.' You are to consider the evidence, and say whether or not the present case 'stands upon the same footing of reason and justice as the cases of justifiable homicide specified in the Code."' This was not given in the form requested, but the Code section was given in charge, with the judge's explanation of its meaning.

(3, 4) S. J. Tribble, of counsel for the state, in his argument to the jury, said: "This is only one of the many instances where the rich landlord shoots down the poor tenant, and it should be stopped." Also: "Old man Farmer [the father of defendant] said he had enough trouble on his hands. Yes, gentlemen of the jury, he has. This is the second one of his boys who has committed the offense of murder, and the county demands at your hands that these murderers be convicted and hanged." Also: "Two other sons of old man Farmer are murderers." The defendant assigns error in that the court did not stop such argument and statements, and instruct the jury that they were to pay no heed to them. The court certifies this ground with the qualification that when the attention of the court was called by counsel to the objection that the young associate counsel of the state was indulging in appeals to the jury, not, as counsel considered, authorized by the evidence, (the precise language not recalled,) the court cautioned him, and ordered him to confine himself to the evidence in the case, and he conformed, and there was no further complaint or objection; and, so far as the court heard, some of the statements objected to were founded on evidence admitted without objection.

(5) The trial judge forced counsel to proceed with the case until late in the night of the second day of the trial, when Mr. Thomas, counsel who had prepared the case for trial, and who was leading counsel, and the one the defendant most relied on, was sick, and unable to proceed, and so stated to the judge. The night was bad and rainy, and the ground muddy; and, being forced to go on with the case that night, Mr. Thomas was taken sick, and the next morning was desperately sick, and unable to work, and in consequence thereof could not properly argue the case. He informed the judge that night that he was just out of a sick-bed, where he had been confined for days, and did not have the physical strength to go on with the case that night, and asked that the court take recess until morning, which the court refused to do. The court makes the following statement as to this ground: Mr. Thomas inquired of the judge, privately, about the usual hour of recess in the afternoon, whether or not the court intended to hold a night session, and was informed that such was the intention, as there were other parties in jail under indictment for felonies, one of them for murder, awaiting trial, and the week's session was drawing to a close. To this Mr. Thomas may have stated that he was not feeling well, but did not ask the court to take recess then because of his sickness or indisposition. When, during the night session, after the argument of two of the counsel in the case had been heard, the court inquired of Mr. Strickland, partner and associate counsel of Mr. Thomas, whether or not Mr. Thomas preferred to go on then, or wait until morning, Mr. Thomas having stated, at the hotel, while at the supper table, during the short recess, that he was not well, and complained that there was to be a night session, Mr. Strickland soon reported that Mr. Thomas had concluded to go on that night, but the jury being weary, and desiring that recess be then taken, it was done. Next morning it was reported that Mr. Thomas was sick, and, after suspending the trial for more than an hour,--it being stated that he would likely be able to appear and proceed within an hour or two,--the court left it to Mr. Strickland, the associate counsel, to proceed with the argument himself, or move a continuance on the ground of Mr. Thomas sickness. Mr. Strickland decided, after consultation with his other associate counsel and client, not to ask for a continuance. About that time, Mr. Thomas appeared in court, and proceeded to argue the case. Counsel did not make a request, in open court or elsewhere, that the court take recess until morning on account of his sickness.

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