Farrow v. The State Of Ga.

• Decision Date: 31 January 1873
• Citation: 48 Ga. 30
• Parties: Robert Farrow, plaintiff in error. VS. The State of Georgia, defendant in error.
• Court: Georgia Supreme Court

48 Ga. 30

Robert Farrow, plaintiff in error. VS. The State of Georgia, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1873.)

Criminal law. Indictment. New trial. Practice. Evidence. Bill of exceptions. Newly discovered evidence. Before Judge Wright. Troup Superior Court. November Term, 1871.

Robert Farrow was placed upon trial for the offense of murder, alleged to have been committed upon the person of Reuben Germany, a person of color. The defendant pleaded not guilty.

The evidence made the following case: On a Tuesday night, during the latter portion of the month of October, 1871, Wily Cunningham and the deceased were out hunting. Columbus Cunningham, the brother of Wily, and defendant met them in the road. Columbus became involved in a difficulty *with deceased; Wily led the deceased off from his brother, when deceased jerked away, struck Wily, jumped back, drew his knife, rushed at Wily and closed with him; Columbus then seized deceased, when defendant took Columbus off of deceased's back, and threw him on one side of the road. Defendant said to deceased, "God damn you, you have cut me." Deceased shut up his knife and said, "If I did, I did not aim to do it." Defendant replied, "God damn you, you have cut me, " pulled out his knife, rushed upon deceased, struck him in the breast and said, "God damn you, I will shoot you." He did not shoot, but struck deceased three times in the breast. When he stuck him the third time, deceased closed with him and ran him back, bending him over the fence; the defendant then commenced cutting deceased; deceased threw defendant out into the road, got up off of him, and said that defendant had cut him all to pieces; Wily told him to come and go home; he said he was not able to go, and asked Wily to come and unbutton his pants; deceased laid down and said, "God bless the man, I love him for all he has served me so." He died in fifteen or twenty minutes; deceased had been drinking. One witness testified that some three weeks before the homicide, defendant said to him that deceased had made him mad; witness asked what about? Defendant answered that he heard deceased tell a lady to slight him, defendant, for him, deceased, and that the first time he crossed his path, he intended to put a ball in him. The defendant was somewhat stouter than deceased.

There were some few discrepancies in the immaterial portions of the testimony, but the case as herein stated, is all that is necessary to a clear understanding of the decision of the court.

When the evidence was closed, the defendant proceeded to make his statement to the jury, as allowed by statute in such case made and provided. Counsel for the State objected to its reception, save as such testimony, as, if received, would debar counsel for defendant from opening and concluding the argu-ment to the jury, which objection was sustained; it was *further ruled by the Court that if defendant should make his statement, then his counsel would be precluded the privilege of opening and concluding the argument to the jury.

To which ruling counsel for defendant excepted. Defendant requested the Court, in writing, to charge the jury "that if Reuben Germany, the deceased, was described in the indictment as a person of color, it was such an allegation as must be strictly proven as alleged, and that no presumption that such was the fact could, outside of the evidence, be entertained by the jury, " which charge the Court refused to give, and defendant excepted.

Defendant, in writing, requested the Court to charge, "that if the jury believed that during a sudden rencounter with the deceased, the defendant fled as far as he consistently could, by reason of a fence and other impediments, and then, under a reasonable fear of great bodily harm, slew his assailant, that it was justifiable homicide, " which charge the Court refused to give, but on the contrary, charged the jury, "that under any circumstances of retreat or avoidance, if the defendant was under the fear of a reasonable man that a felony was about to be perpetrated upon him by his assailant, then the killing would be justifiable homicide, but that any circumstances of retreat or avoidance under reasonable fear of any less bodily hurt, could only reduce the offense to voluntary manslaughter, " to which charge defendant, by his counsel, excepted.

The jury returned a verdict in these words: "We, the jury, find the defendant guilty of voluntary manslaughter." Whereupon counsel for defendant moved for a new trial in the said cause, upon the following grounds, to-wit:

1st. Because the Court erred in ruling that the statement of the prisoner at the bar is such testimony as to preclude counsel for defendant from making the concluding argument, when such defendant introduces no other evidence or testimony.

2d. Because the verdict was contrary to the evidence andprinciples of justice.

*3d. Because the verdict was strongly and decidedly against the weight of the evidence.

4th. Because, since the trial of the said cause and the verdict rendered, new and material evidence has been discovered by the defendant, to-wit: that of Columbus Cunningham, of said county, who informed this defendant that he heard Reuben Germany, the deceased, just before the fatal rencounter, curse and threaten the defendant, using toward said defendant, Robert Farrow, words and threats going to show an intention to take said defendant's life.

In support of the last ground was attached the affidavit of the defendant.

The motion was overruled, and counsel for defendant excepted upon each of the grounds aforesaid.

Cox & Turner, for plaintiff in error.

1. (a.) See Irw. Rev. Code, 4551, 3798; Stat. 1868, p. 24. When old statute is repealed by new: 1 Black. Com., 89; Irvin et al. vs. Moore et al., 15 Ga. R., 361; Elrod vs. Gilliland, H. & Co., 27 Ga. R., 467. General rule as to construction of statutes: 1 Bl. Com., 61; Irw. Rev. Code, section 4. As to technical terms: 1 Bl. Com., 59. Definition of testimony: Bouv. Law Dic, vol. 2, 4th ed., 589; see State vs. Williams, 3 Ga. R., 460; 18 Johns., 218.

(b.) See 3 Green. Ev., 22; Wharton's Amer. Crim. Law, vol. 1, 597.

(c.) See 4 Bl. Com., 185; Park. Cr. R., vol. 1, 164; Cons, of Ga., Art. XL, sec. 3; Code of Ga., 4268.

(d.) See definition of crime: Irw. Rev. Code, 4227, 4228.

(e.) All the acts of prisoner, up to the time he struck deceased, clearly show that his intention was to quell difficulty.

2. A state of mind once proven to exist is presumed to continue until rebutted by proof: Irw. Rev. Code, 3701.

3. Prisoner drawing knife and striking deceased in breast is not such proof, because the act may be accounted for upon a reasonable hypothesis, consistent with his innocence, to which construction he is entitled: 3 Green, on Ev., 29.

*4. The facts are: Deceased was drunk; deceased had attempted to cut all present; deceased stabbed prisoner whilst he, prisoner, was in the act of defending himself; all present had persuaded deceased to stop the fuss.

5. First hypothesis: Prisoner seeing all appeals to the reason of deceased fail, attempted, by threats, to overawe him, and thereby prevent further acts of violence on his part.

6. This hypothesis is reasonable. Prisoner did not intend to execute his threats, for there is no evidence that he had a pistol; prisoner did not intend to cut deceased, because he did not open his knife; prisoner did not intend to inflict upon deceased the least bodily hurt, for, having ample opportunity, he did not strike him as though he were fighting, and prisoner retreated when he was assaulted.

7. Second hypothesis: Prisoner made the threat to protect himself from personal danger, which he had a right to do: Whar. Amer. Crim. Law, sec. 1026.

8. Prisoner had a right to deem the threat necessary, because all other means to stop deceased's violent assaults had failed: See evidence, generally, of Wm. Jackson and Wiley Cunningham.

9. Prisoner could not run, because he was badly wounded in the...