Freeman v. State
| Decision Date | 29 October 1900 |
| Citation | 37 S.E. 172,112 Ga. 48 |
| Parties | FREEMAN v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. When, on the trial of a case, no evidence tending to impeach any witness in any of the modes prescribed by law was introduced, failing to charge on the law relating to the impeachment of witnesses was not erroneous; and, even if such evidence had been introduced, a party desiring the judge to instruct the jury on this branch of the law ought to have presented an appropriate written request to this effect.
2. When objection was made to oral proof of a dying declaration on the ground that it had been reduced to writing by the witness, and he thereupon produced an unsigned paper purporting to embrace such declaration, and testified that he took down its contents exactly as stated by deceased, and that, after so doing, it was read over to the latter, and he pronounced it correct, there was no error in admitting the paper. (a) Excluding an irrelevant and inadmissible part of such writing was certainly proper.
3. It was, in a trial for murder, erroneous to charge the law embraced in section 73 of the Penal Code, when there was nothing either in the evidence or the statement of the accused to warrant even an inference that there had been a mutual combat between the parties, and the defense was planted squarely on the law contained in sections 70 and 71 of the Penal Code.
4. When, in a trial for murder, neither the evidence nor the statement of the accused is such as to authorize a charge upon the law of voluntary manslaughter, no instructions on this branch of the law should be given.
5. A request to charge which embraces an instruction that a killing might be justified by a fear in the mind of the slayer of "great bodily harm" amounting to less than the commission of a felony upon him was properly refused.
Error from superior court, Bibb county; W. H. Felton, Jr., Judge.
Wiley Freeman was convicted of murder, and brings error. Reversed.
John R Cooper and Augustin Daly, for plaintiff in error.
Robt. Hodges, Sol. Gen., and J. M. Terrell, Atty. Gen., for the State.
Wiley Freeman was indicted by the grand jury of Bibb county for the murder of James Dean. Upon the trial of the case the jury returned a verdict of guilty, with a recommendation for life imprisonment, whereupon the accused moved for a new trial and excepts to the judgment overruling his motion.
1. One ground in the motion for a new trial is that the court erred in not charging on the subject of impeaching witnesses by proving bad character,--in other words, in not charging section 1027 of the Penal Code. Upon examining the record, we fail to find in it any effort to formally impeach a witness by virtue of the provisions of that section of the Code. It is claimed by counsel for the accused that the testimony of the deceased, whose dying declaration was admitted in testimony, was impeached by proving that the latter was just out of the penitentiary, where he had served a term of eight years for burglary. It does not appear that any request was made of the court to give in charge the law on the subject of impeachment. There is no evidence in the record showing that the deceased had served a term in the penitentiary, save the statement of the accused; but, even if there was, this is not such proof. While it may be considered by the jury to the discredit of a witness, it is not the formal method of impeachment prescribed by the statute. Even if the witness had been formally impeached, as prescribed by the statute, by proof of general bad character, we think a party desiring the judge to instruct the jury on this branch of the law ought to have presented a proper written request to this effect. Certainly there is no error in not charging the law of impeachment, where no request has been made, when the record shows there was nothing reflecting upon the character of the witness attacked, save what was said by the accused in his statement. Huff v. State, 104 Ga. 521, 30 S.E. 808; Bass v. State, 103 Ga. 228, 29 S.E. 966 (headnote 4).
2. One ground in the motion for a new trial is that the court erred in admitting the testimony of one Wright in regard to the dying declaration of the deceased. It appears from the note of the court on that ground that defendant's counsel objected to the witness testifying orally to the statement of the deceased, upon the ground that he (Wright) had reduced this statement to writing, and therefore the writing was the highest evidence. The solicitor then offered the writing contained in the motion, accompanying it with the evidence found in the brief as to the manner in which it was taken down. Defendant's counsel then objected to the paper containing the statement as written down by Wright, upon the ground that the paper was not properly executed or signed by deceased. The written statement of the deceased, as drafted by the witness, was admitted in evidence over this objection. The witness himself swore that when the deceased made his dying statement to him he took it down in writing, and, after having read it over to the dying man, he ratified it and confirmed it as correct. We think the court did right, in the light of the parol evidence, in admitting the written statement in evidence, although the same had never been signed by the party who made the statement. On this point the evidence was that he was too weak to sign his name, and, when asked to sign it, gave this as a reason why he could not attach his signature. There is nothing in the statute that requires a dying declaration to be in writing, or, if reduced to writing by one who hears the statement, there is no law requiring its signature by the witness. In fact, it is a well-recognized principle of law that, unless required by statute, a written instrument does not require the signature of all parties thereto. See 7 Am. & Eng. Enc. Law (2d Ed.) p. 142 and numerous authorities cited in the notes, where the rule is announced that, if an instrument has...
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