Freeney v. State
| Decision Date | 21 December 1907 |
| Citation | 59 S.E. 788,129 Ga. 759 |
| Parties | FREENEY v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
In the light of the note appended by the presiding judge to the first ground of the motion for a new trial, the mode of summoning tales jurors will not require a new trial.
[Ed Note.-For cases in point, see Cent. Dig. vol. 31, Jury, §§ 333, 334.]
From a note of the presiding judge, it appears that one of the contentions of the state was that the person who was slain had an interest in the house where the accused woman lived and went there to collect his rent or to see about it; that this was controverted by the defendant, who claimed that the deceased had no interest in the house, and that no rent was due at the time of the homicide; that in making her statement the accused referred to certain receipts given to her for rent, and exhibited them; that her counsel told her to hand them to the jury, which she did; that, after the jury had examined them and handed them back, the Solicitor General requested the official stenographer to mark them for identification, which was done; that later, when a witness for the state was being cross-examined, counsel for the accused handed to the witness a rent receipt and proved its execution by him, and then said (referring to the receipt) -to which the Solicitor General replied "All right." Held, that this showed that evidence was introduced on behalf of the accused; and her counsel were not entitled to the opening and conclusion of the argument.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 1507, 1508.]
Where evidence has been introduced on behalf of the accused, and heard or examined by the jury, and counsel for the state therefore has the opening and conclusion of the argument, counsel for the accused cannot as matter of right withdraw the evidence, and thus regain the right to open and conclude.
Section 72 of the Penal Code of 1895 provides that "If after persuasion, remonstrance, or other gentle measures used, a forcible attack and invasion on the property or habitation of another cannot be prevented, it shall be justifiable homicide to kill the person so forcibly attacking and invading the property or habitation of another; but it must appear that such killing was absolutely necessary to prevent such attack and invasion, and that a serious injury was intended, or might accrue to the person, property, or family of the person killing." Held, that the words, "a serious injury," in this section, are not limited to a felony.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 26, Homicide, §§ 182, 183.
For other definitions, see Words and Phrases, vol. 7, pp. 6420, 6421.]
As to whether the charge of the court on this subject requires a reversal or not, the justices of this court are equally divided in opinion. On this question, therefore, the judgment is affirmed by operation of law. On all other questions the court is unanimously of the opinion that no reversal is required.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Criminal Law, § 3206.]
None of the other grounds of the motion for a new trial require a reversal.
Error from Superior Court, Dodge County; J. H. Martin, Judge.
Sallie Freeney was convicted of murder, and she brings error. Affirmed.
Pen.Code 1895, § 72, provides that, if after persuasion, remonstrance, or other gentle measures used, a forcible attack and invasion on the property or habitation of another cannot be prevented, it shall be justifiable homicide to kill the person so forcibly invading and attacking the property or habitation of another, if the killing is absolutely necessary to prevent such an attack and invasion, and a serious injury is intended or may accrue to the person, property, or family of the accused. Held, that the words "serious injury" in such section are not limited to the commission of a felony, but that the killing would be justified if absolutely necessary to prevent the attack and invasion, etc.
It is unnecessary to report the facts further than they are set out in the opinion, except to give the material portions of the prisoner's statement, as follows: "I married the first time Jesse Rogers, who was over 50 years of age, father of Sheriff Rogers. He was cruel and unkind to me. He shot at me and beat me, leaving knots on my head. We could not get along. I had one child by him, named Lueva, who since married a man by the name of Martin. I worked hard in the house and in the field, and even taken the plow to try to make a living, and it seemed that I could not have anything. We separated, and he taken everything that I had worked for, and I was sick and not able to work, and George Freeney came to me, and told me that he would take care of me and work for me, and we would marry as soon as I got my divorce. It was about two years before the divorce, and that time I had my baby there. But I have been living just as near right as I knew how; and would pray and ask the Lord to help me. *** He came down just before dark, and knocked at the door. I went out and said: 'Good evening Mr. Harrell.' He said 'How are you getting along Mrs. Freeney?' I said: He said he was all right. Just the very way he said it. He said: 'I am all right.' I told him to have a seat. He said he didn't care to sit down, and started to push in by me. I had hold of the bolt of the door, and he started to push in by me. I told him to go in the boy's room that my room had not been cleaned up all day, and not to go in there; that my cook was sick, and I had not had time to clean up the room, which everybody in the whole country know I was run to death all the time. He said, 'You need not get mad, nor fuss, nor rear, but I am going to sleep with you before I leave here.' I says, 'Why, Mr. Harrell, what is the matter with you.' He said: 'I have got as much money as anybody, and you can get it'-and grabbed hold of my arm there. I jerked away from him, and thanked him; I didn't want a cent of his money. If I did I would go to him like a lady and ask him for it, and pay it back to him. I says: 'Are you drunk, crazy, or sober, or what is the matter?' He said he was as sober as I was. I says: 'Well, you go home to your wife and children.' I says: 'If I had time, I would go to your wife and tell her right now.' I says: 'Now, you had better go on, and let me alone.' I says: 'Please get out of here.' He walked on out, and I heard him say at the gate-I was standing in the door-I heard him say at the gate that 'My wife and children go to hell.' I started back into the kitchen. It was getting late, and I hadn't fixed supper. He opened the door and started in my room. I turned around and says, 'Didn't I tell you to go on and let me alone,' just like I was talking to any one. I was not mad a bit, but my feelings were hurt. He says, 'I told you, God damn you,'-that is the very way he spoke- I said, 'I will see'; and started out for an officer. He was standing in my front room door. I started out. When I did, he hit me right in the breast, just as hard as he could drive me, and made an awful wound on my breast. For a week I could hardly get breath. I started out at the other kitchen door, and he told me that, if I didn't come back, he would blow my head off, and 'I have a pistol to do it with.' I knew he always toted a pistol in the country, because, when he would come to the house, he would give it to Mr. Freeney, and Mr. Freeney would put it away. He would not let me out of the front door or the back door. I didn't know what else to do. I could not let him take me and let him shoot me down. I knew something was wrong. He was either drunk or crazy one, or he would not have come down there and approached me in any such way as he did, because he had been to my house a whole lot, and always treated me just as kind as if he had been a brother of mine. I went back to the bed. When I went to the bed, he stepped inside. I run there as quick as I could, raised a corner of the mattress, and got my pistol, and got between the doors, and he was in my front door, and I shot at him. He stepped out back on the veranda, and threw his hand back of him and stooped over, acted as I thought he was drunk, and didn't know where his pistol was. I am satisfied he was drunk. When he threw his hand back, I knew I had to do something. I shot at him again. He turned around, and walked out to the corner, and fell. I didn't know whether I had hit him or not. As soon as I shot the next time and he started out the door, I went back to the bed, and put my pistol under there, and went right on to the door. I was kinder frightened. I didn't know hardly how I did feel. I didn't know but what he was gone home. When I got to the door, I looked and didn't see him anywhere. I went up to the other end of the porch, and came back to this end. When I got there, he was lying there. It was just like Mr. Andrew's boy said. He was the first one there. He saw me shoot. I told him I did it. Mr. Harrell came down there and insulted me, and struck me, and I told him I could not take everything because I was a poor woman, and had nobody to protect me. It was too bad, and the crowd come and didn't give me time to say anything. Mr. Harrell thought he would make me yield to him because I thought he had plenty of money and friends, and because I was just a poor woman and didn't have any one to protect me and without money, just working for what I eat, that he would take the advantage of me. My breast was bruised clean through and through back to my shoulder blade. ***...
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