Franklin v. State

• Decision Date: 31 October 1882
• Citation: 69 Ga. 36
• Parties: Franklin v. The State of Georgia.
• Court: Georgia Supreme Court

69 Ga. 36

Franklin v. The State of Georgia.

Supreme Court of Georgia.

October 31, 1882

September Term, 1882.

1. On the trial of a defendant for murder, the throat of the deceased having been cut and the character of the wound being important to elucidate the issue, a photograph of the wound was admissible in evidence.

2. Where it was sought to connect a defendant with a homicide by reason of his possession of articles of apparel belonging to the deceased, a statement of the deceased made before his death, to the effect that the shoes and socks taken from defendant's feet belonged to him, was admissible, it having been made in the presence of defendant and not denied by him.

3. That shoes and socks were taken from the feet of a defendant after his arrest, or that he was told to take them off by the police officers, and did so, without any objection being made by him, does not render evidence identifying such property inadmissible, it being otherwise competent.

( a. ) This case differs from Day vs. State 63 Ga. 667.

4. Such articles of apparel were admissible in evidence and so also were boots, found at the scene of the crime and corresponding in description to boots which had been worn by the defendant.

( a. ) A knife, shown to have been in defendant's possession a day or two after the throat of deceased was cut and then presenting traces of blood, was admissible in evidence.

5. While, as a general rule, a case should not be re-opened at the instance of the state after the witnesses for the defendant have been discharged, at least without opportunity to send for them; still where no witnesses were examined for the defendant except on the subject of good character and for purposes of impeachment, and he did not show the presiding judge that the discharged witnesses would testify so as to affect the point to which the new witnesses were called, we cannot say that the judge abused his discretion in allowing the solicitor general to re-open the examination and introduce new testimony.

6. Where the testimony introduced by a defendant related solely to his character and to the impeachment of witnesses for the state, and the judge called the attention of the jury to such testimony, he thereby called attention to the proof of good character.

( a. ) If a more specific charge on that point was deemed necessary by counsel for defendant, they should have called the attention of the court to such omission.

7. Where statements of the person killed were made before his death in the presence of defendant and not denied by him, to the effect that the shoes and socks found on the latter belonged to him, and the court in admitting this evidence stated that he did not admit it for the purpose of identifying the property but as statements made in the presence of the prisoner, this was neither an expression of opinion by the judge, nor did it necessitate a charge on that subject.

8. Circumstantial evidence proves certain facts which sustain by their consistency a hypothesis claimed.

9. A ground of error which contains numerous items or points, but specifies no one as erroneous, is too general, and will not be considered unless all the items are erroneous.

( a. ) We find no error in this ground.

10. Though a witness be impeached as to general character, yet if corroborated in a material point, he may be believed, and if impeached by one witness as to character and sustained by another, it is for the jury to pass upon the credit due him.

11. A ground of a motion for new trial that the entire charge is vague, argumentative, and does not present the law of the case, without specifying any errors, is too general.

12. The verdict is supported by the evidence.

Criminal Law. Evidence. Practice in Superior Court. Witness. Before Judge SIMMONS. Bibb Superior Court. October Term, 1881.

C. H Franklin was indicted for the murder of Mit Bryant. On the trial, the evidence for the state showed, in brief, the following facts:

Franklin was at work on the place of one Fr??an and digging a ditch in the garden. On Saturday, July 30th, 1881, he went to Macon. About eight o'clock at night, he went into a store on Pine street, and shortly after eleven o'clock he again went into the same store. He then purchased some tobacco and went up Pine street. As he left the store, he called to a negro who joined him, and they went off together. In about two or three minutes some one came to the store and reported that there was a man with his throat cut on Pine street. The clerk went to see about the matter, and found Bryant lying on the sidewalk with his throat cut. He was down Pine street in an opposite direction from that taken by Franklin, and about fifty or fifty-five yards from the place where Franklin was last seen. According to the account of another witness, as he was passing along Pine street, about eleven o'clock at night, he met Bryant in company with a white man and a negro about the place where the murder occurred. The white man wore side whiskers and a moustache. He had on old and muddy looking boots. He and the negro had Bryant down upon the sidewalk. Attracted by the noise, the witness asked what the matter was, to which the white man responded that a friend of his was drunk and he was trying to get him home, and asked the aid of the witness in doing so. The latter took hold of Bryant on one side and tried to assist him. The man searched Bryant, stated that he was a United States marshal and presented a badge. He also stated that Bryant had $500.00. Bryant was very drunk, and the witness said that they could do nothing with him without a hack, and advised that he be left where he was, and that he would be all right on the morrow. The witness thereupon went away leaving the white man and the negro with the drunken man. After some time, probably three quarters of an hour, the witness returned the same way found Bryant with his throat cut, and gave the alarm. When found, Bryant was barefoot and had a boot with an umbrella under his head and another boot beside him. The witness who found Bryant had been drinking some, but stated that he was not drunk. He had seen the same white man who was with Bryant earlier in the evening. He thought it was the prisoner, but could not be positive as the man wore side whiskers and a moustache, while the prisoner had, at the time of trial, a full beard. Defendant reached the place where he was staying about twelve o'clock at night. He then had on shoes. The next morning he exhibited a knife which had stains upon it which stains (in the language of a witness) " imitated blood." Defendant stated that on the previous night he had loaned his knife to a friend, and that when this friend returned it, it looked like he had cut a dog with it. The knife was in court and was identified. Defendant was arrested on Sunday and carried to where Bryant was. The latter was able to speak in a low tone, above a whisper. While defendant's hands were tied, the police removed the shoes and socks he wore, and showed them to Bryant who identified them as his own. Defendant was about six or eight feet distant, and could have heard what Bryant said if he listened attentively, though the witness who detailed these facts could not state positively that he did hear. A few minutes later, when the police had finished the object of their visit and were leaving, defendant stated that he bought the shoes at Milner. There was testimony to the effect that the shoes looked like Bryant's shoes and that the boots found near Bryant looked like the boots previously worn by defendant and that defendant wore side whiskers at the time of the homicide. Bryant lingered for some time, and then died from the effects of the wound.

There was much conflicting testimony on both sides as to character, credibility of witnesses, etc., not necessary to detail here.

The defendant in his statement said that he had been on Pine street about eleven o'clock at night, and at the store where he was seen; that he went directly to the place where he was stopping, and knew nothing of the cutting; that he had bought the shoes and socks which were taken from his feet by the police in Milner; that when he was arrested he was tied, and accused of having committed the crime, with abusive language on the part of the police; that the shoes and socks were exhibited to Bryant, who thereupon shook his head as if indicating a negative, and whispered something that defendant did not understand.

The jury found the defendant guilty, and recommended that he be imprisoned for life. He moved for a new trial on the following grounds:

(1.), (2.), (3.) Because the verdict was contrary to law and evidence.

(4.) Because the court admitted in evidence the photograph of the wound of deceased.

(5.) Because the court admitted the following evidence of Wood, a witness for the state: " He (Bryant) called Franklin, Ben, or Bud, or some such name. We made him (Franklin) pull his shoes off, and showed them to Bryant. He (Bryant) then took them in his hands and said: ‘ These are my shoes.’ We then made him pull off his socks and handed them to Bryant, and he identified them said they were his. Franklin did not say anything. He sat there quiet and did not have anything to say."

(6.) Because the court admitted in evidence the testimony of C. M. Wood, to the effect that while the defendants hands were tied, his shoes and socks were pulled off, handed to Bryant, and that Bryant identified them.

(7.) Because the court erred in admitting the knife, socks, boots and shoes, offered in evidence by the state.

(8.) Because the court permitted the state to re-open the case and re-introduce two witnesses under the following circumstances Both the state and the defendant had closed on Friday evening,...