Faulkner v. State

• Decision Date: 17 May 1928
• Docket Number: 6497.
• Citation: 144 S.E. 193,166 Ga. 645
• Parties: FAULKNER v. STATE.
• Court: Georgia Supreme Court

144 S.E. 193

166 Ga. 645

FAULKNER v. STATE.

No. 6497.

Supreme Court of Georgia

May 17, 1928

Rehearing Denied Aug. 22, 1928.

Syllabus by the Court.

Where the deceased was shot by the defendant on Thursday night, one ball entering his left arm and shattering the bone of this arm, and another ball entering the left leg and shattering the long bone in his thigh, and where the deceased died from the result of these wounds at 1:30 a. m. on the following Wednesday, the trial judge did not err in admitting as a dying declaration his statement as to the cause of his death and the person who killed him, made on the day following the one on which he was shot, the deceased stating that he felt that he would not recover, and that, if anything happened, he wanted to give an account of the manner in which he was shot by the defendant, notwithstanding the fact that his medical attendants did not consider him in a serious condition until the following Tuesday, when they discovered that he was infected with blood-poisoning; the objection to the admission of such statement being that the preliminary proof failed to show that the deceased was conscious of his condition.

The trial judge did not err in giving to the jury the instruction dealt with in the second division of the opinion, upon the ground of exception urged thereto.

An erroneous instruction upon a theory of defense, not authorized by the evidence, does not require the grant of a new trial.

The trial judge did not err in giving to the jury the instruction dealt with in the fourth division of the opinion.

The court below did not err in failing to instruct the jury that under the evidence the arrest of the defendant was illegal.

Where a defendant was indicted and tried for the murder of a policeman, and separately indicted for an assault with intent to murder another policeman, both offenses growing out of the same transaction, a ruling by the trial judge that the relatives of the latter policeman were competent jurors to try the defendant for the murder of the policeman who was killed, even if erroneous (on which we pass no judgment) does not require the grant of a new trial, it not being made to appear that any relative of the living policeman served upon the jury who tried the defendant, or that the defendant was compelled to exhaust his peremptory challenges in getting rid of such relatives, for which reason he could not challenge other objectionable jurors, or that the state was in any way benefited by such ruling.

The questions propounded by the court to a witness, and set forth in the tenth ground of the motion for new trial, did not amount to an expression of an opinion upon the evidence.

The verdict is supported by the evidence.

Error from Superior Court, Walton County; Blanton Fortson, Judge.

Oscar Faulkner was convicted of murder, and he brings error. Affirmed.

Atkinson J., dissenting in part.

Charge that if defendant shot at another and hit deceased same law would apply as though third person was shot held proper under evidence concerning justifiable homicide.

Oscar Faulkner was indicted and tried for the murder of Erastus Moon. The jury returned a verdict of guilty with a recommendation. The evidence of the witness who were sworn on the trial was substantially as follows:

W. J Mayfield:

He and Moon, who were policemen, were called by the defendant to go down to a filling station in the city of Monroe. They found that there had been a collision between the automobile of the defendant and that of one Collins. Those two could not agree as to who was at fault, and called Mayfield and Moon to straighten it out. Moon told the defendant that it was not their business to settle this dispute. The defendant cursed Collins, and told him that if he did not fix his car he was a d_____ s_____ of a b_____. The policemen kept them apart. Moon put the defendant under arrest for cursing and being drunk and disorderly, and placed him in charge of Mayfield. Moon put the defendant in the car of Mayfield. The defendant asked Moon what was to become of his wife and children, who were with him in his car when the collision occurred. Moon said to defendant's wife, "Get your things out of the car there and the children, and we will drive by and leave you there at the house." When they reached his home, the defendant opened the car door. Moon said to him, "You stay in the car." The defendant mumbled that he would be damned if he went anywhere. Mayfield opened the door and went around the front end of the car. Moon had got out on the right-hand side of the car. Just as Mayfield got at the front wheels he heard the defendant's pistol snap. "I made a lunge at the defendant, when his daughter butted me and threw me to the side. The defendant shot me through the hand. There wasn't a word spoken. I had no pistol in my hand, and did not have a chance to get one until I was shot. I had not reached for my gun at the time I heard the pistol snap; did not touch the defendant when I made the lunge, but I was close enough as defendant pulled his gun for the powder to burn me. My clothes were shot. What first attracted my notice was the snapping of the defendant's pistol as it came out of his pocket, and the next thing was the lunge to get defendant's pistol. Defendant shot me as I lunged. I was shot in both hands. Could not tell whether I was shot with one shot or not. A daughter of defendant butted me in the stomach to keep me from getting to her father. After I was shot the defendant turned half way around and shot Moon. I got my gun from the scabbard, but didn't have strength enough to pull the trigger, and found I was shot. Did not know I was shot until then." The defendant stepped up on his porch and said, "I have got one of the damned bullies, and that is my part." When Mayfield reached for his pistol, defendant was shooting Moon. He shot four times altogether, twice at Mayfield and twice at Moon.

A. S. Williamson:

"I am chief of police of the city of Monroe. Visited Moon several times after he was shot. The second night after the shooting I had a conversation with him. Malcom and I, and possibly one or two others, visited Moon the night following the shooting. We started to leave and got out in the hall, when he called me back, and said, 'Ed, I just want to tell you, if in case anything happens, I want you to know that this man shot me for nothing, and I feel that I am not going to get over it.' He then told me the details of the shooting. He told me that they got a call to go to Martin's store. He said he and Mayfield went down, and when they got there they found the defendant and one Collins had had a wreck. He said, 'Faulkner called us up and wanted us to come down and make Collins pay for the damages to his car.' He said, 'I told him we didn't have anything to do with damage suits; that we couldn't settle damages.' He said, 'So I told him if he wanted me to I would have them both come to court Monday, and they could settle it before the mayor, and they went off to one side.' In the conversation he gave me to understand that he, Collins, and the defendant left the crowd, and the defendant told Collins unless he paid for his car he was a d_____ s_____ of a b_____, and Moon told the defendant there was no use of cutting up that way, and he said, 'I told him he would have to stop that, and that he would have to consider himself under arrest.' He said, 'I told him to get in the car, and I put him in the car with Mayfield, and his wife said something about how would she get home, and I put her in the car in the back seat with me, and as soon as we stopped the defendant jumped out, and I got out and told him to get back in the car. His wife was talking to me and begged me not to take him. The next thing I knew the defendant was shooting at Mayfield.' And, he said, 'When I realized that he shot Mayfield I reached for my gun, and the defendant shot me in the leg before I could get it out.' He said, 'I fell on the ground, and I could hear his pistol snapping several times.' He said when the defendant did that he backed up on the porch and said, 'I got two of the damned bullies,' and that he reckoned that was his part. He said that they could hear defendant in the house rearing and wanting more cartridges, calling for his gun, and saying he would clean up the whole damned works."

Dr. H. B. Nunnally:

"Was one of the attending physicians on the deceased. He died about 1:30 o'clock on Wednesday morning. His death was due to a bullet wound. One wound was about three or four inches above the left knee. It fractured the long bone in the thigh. The other wound was in the lower third of the left arm. It shattered this bone in the arm. Was at the hospital the night deceased died, and his mind was perfectly clear. His condition, however, was very grave. He was in the article of death. He made a statement to Dr. Aycock and myself. The substance of it was that they had brought the defendant and his wife and children up to the house, and they got out. He told the defendant he had better get in the car, that they were going to take him on to town, when the defendant kinder backed back

towards the porch, and I believe he said, 'No, you will not take me anywhere,' and drew a pistol and began firing; that he shot Mayfield first, and that as he shot at Mayfield, the latter reached for his pistol, and as he was pulling it out of the holster on his hip the defendant turned and shot him in the leg and caused him to fall, and he shot him again; and he said, 'I don't know whether he shot me the second time in the arm when I was falling, or after I hit the ground."'

Witness did not become alarmed over the condition of the deceased until some time before 11 o'clock on Tuesday night. His temperature was...