Fudge v. State

• Citation: 9 S.E.2d 259,190 Ga. 340
• Decision Date: 23 May 1940
• Docket Number: 13144
• Parties: FUDGE v. STATE.
• Court: Supreme Court of Georgia

9 S.E.2d 259

190 Ga. 340

FUDGE v. STATE.

13144

Supreme Court of Georgia

May 23, 1940

Syllabus by the Court.

1. The mere fact that the name of one of the jurors who convicted the accused was not on the jury list is not cause for a new trial, when the point is raised for the first time after verdict. If the fact would constitute a valid ground of objection under any circumstances, it should be raised by a challenge to the poll, and not to the array.

2. One who is not an expert or a practicing physician may, after describing the wound, give his opinion that it caused death.

3. Under the facts shown in the record, a charge in which the judge instructed the jury as to contentions of the defendant was not cause for a new trial because it stated that the contentions were made by the defendant 'through his counsel.'

4. The standard of a reasonable man, as related to the defense of reasonable fears in a trial for murder, is one which the jury must determine from their own observation and their common knowledge and experience. The charge on such defense was in accordance with this rule, and was not erroneous as contended.

5. In the instant case, in which one of three brothers was tried upon an indictment charging all of them jointly with the offense of murder, even if a charge on the right of the parent and child to defend each other would have been authorized by the evidence, the principle was at most only collaterally involved, and the failure so to charge was not erroneous in the absence of a proper and timely request.

6. Whether or not the evidence demanded a finding that the deceased died of a wound inflicted by the present defendant it showed conclusively and without dispute that he died as a result of a wound or wounds inflicted by one or more of the persons jointly indicted, and consequently the court did not err in failing to charge the jury on the law of assault with intent to murder.

7. In the absence of request, the judge did not err in failing to charge on the character of the deceased.

8. The evidence authorized the verdict, and the court did not err in refusing a new trial.

Fort Fort & Fort, of Americus, for plaintiff in error.

E L. Forrester, Sol. Gen., of Leesburg, Ellis G. Arnall, Atty. Gen., E. J. Clower, Asst. Atty. Gen., and C. E. Gregory, Jr., of Decatur, for defendant in error.

BELL Justice.

Jim Fudge was jointly indicted with Charlie Lucius Holcomb and Johnnie Lee Harris, for murder in the alleged killing of J. T. Johnson. Fudge was tried separately, found guilty, and sentenced to electrocution. His motion for new trial was based upon the general grounds, to which several special grounds were added by amendment. It appeared from the evidence that the defendant Jim Fudge and the other persons indicted with him were brothers, or half-brothers. J. T. Johnson, the deceased, was the husband of their sister. A few days before the homicide, he had struck his wife with some instrument, and at the time of the killing he and his wife were not living together, she having gone to the home of her mother. A warrant had been issued against him for wife-beating, and his employer had promised to make bond for him. He lived on the farm of one Isler. Jim Fudge and the codefendants lived at different places, each several miles away. On the same farm where J. T. Johnson lived was the home of George Scott, where the killing occurred. It was the theory of the State, that these three brothers went to the Isler farm for the purpose of doing harm to J. T. Johnson, because of his mistreatment of their sister; that Jim Fudge and his codefendant Johnnie Lee Harris had gone to this house of George Scott, and were on the back porch, when J. T. Johnson came in at the front door, apparently fleeing from Holcomb, the other defendant; that he was met in the house by Jim Fudge and shot by Fudge with a pistol, and was then beaten by Holcomb with the stock of a shotgun, the barrel of which was later found at the home of the defendants' mother. The theory of the defendant on trial was that all three of the defendants and the deceased, with others, were playing cards for money in the house of George Scott, that the deceased became angered, left, returned with a shotgun, and pointed it at Holcomb, who grabbed it, and that in the scuffle the deceased and Holcomb were shoved out on the front porch, but immediately afterwards Johnson came back inside with the shotgun and pointed it at Jim Fudge, who then shot him with the pistol. Both sides introduced evidence, and there was some evidence to support each of these theories. The defendant made a statement in which he claimed that he shot the deceased in self-defense, stating that he would not have shot him except to protect himself. The grounds of the motion for new trial are sufficiently indicated in the following opinion.

1. The mere fact that the name of one of the jurors who convicted the accused was not on the jury list is not cause for a new trial, when the point is raised for the first time after verdict. Embry v. State, 138 Ga. 464, 75 S.E. 604. Where the name of the juror was actually in the jury box and was drawn therefrom, even if the omission of such name from the jury list might be considered as ground of objection propter defectum (but see Code, § 59-109; Washington v. State, 122 Ga. 735, 50 S.E. 920; Crawford v. State, 81 Ga. 708, 8 S.E. 445; Faulkner v. Snead, 122 Ga. 28(3), 49 S.E. 747), it would not be cause for a new trial unless discovered and urged before verdict. Jordan v. State, 119 Ga. 443, 46 S.E. 679; Taylor v. Warren, 175 Ga. 800(3), 166 S.E. 225; Wright v. Davis, 184 Ga. 846, 851, 193 S.E. 757; Jones v. State, 148 Ga. 582(3), 97 S.E. 621.

The averments in the motion for new trial that the accused was not arraigned and did not waive arraignment, which appear to have been made only for the purpose of showing that he was 'deprived of his right to challenge the array and thus purge the panel of the illegal juror,' were ineffectual for such purpose, since the objection related to an individual juror and should have been raised by a challenge to the poll, and not to the array. Code, § 59-803; Taylor v. State, 121 Ga. 348, 49 S.E. 303; Bryan v. State, 24 Ga. 79, 52 S.E. 298.

2. 'One who is not an expert or practicing physician may, after describing the wound, give his opinion that it caused death.' Everett v. State, 62 Ga. 65(3); McLain v. State, 71 Ga. 279(4); Taylor v. State, 135 Ga. 622(6), 70 S.E. 237; Lanier v. State, 141 Ga. 17(3), 80 S.E. 5; Tanner v. State, 163 Ga. 121(7), 135 S.E. 917. On this point the present case differs materially on its facts from Harris v. State, 188 Ga. 745, 4 S.E.2d 651. The court did not err in admitting the evidence to which objection was taken.

3. The judge charged the jury that the defendant 'through his counsel' made certain contentions stated in the charge, as to the circumstances of the homicide; that the defendant 'contends after that occurred * * * the deceased made an attack upon this defendant,' who then shot the deceased 'to save his own life * * *, and that under these contentions' the defendant was justifiable. This charge was assigned as error, on the ground that in using the phrase 'through his counsel' the judge minimized the credit to be given to the defendant's evidence, and intimated that the contention was not supported by any evidence or by any circumstance except 'through his counsel.' It was not averred in the motion that the statement of the judge was incorrect. But regardless of this, the charge in question was immediately followed by an instruction that 'These contentions raise issues of fact' to be determined by the jury from the evidence and the statement of the...