Goodman v. State

• Decision Date: 27 January 1905
• Parties: GOODMAN v. STATE.
• Court: Georgia Supreme Court

49 S.E. 922

122 Ga. 111

GOODMAN v. STATE.

Supreme Court of Georgia

January 27, 1905

Syllabus by the Court.

1. The evidence authorized a charge on the law of voluntary manslaughter, and the exception taken to the instruction given in reference to that offense was not meritorious.

2. It was not error to admit in evidence, as res gestae, the declaration of the deceased, "Oh Lord! my poor wife and children!" made as he fell from the fatal wound. Even if of doubtful admissibility, it was properly permitted to go to the jury, in order that they might consider what light, if any, it threw upon the condition of the mind or motives of the deceased at the time he was shot. (Simmons, C.J dissenting.)

3. Nor was it error to refuse to grant a mistrial on account of the improper remark of the solicitor general in his argument to the jury; he having expressly withdrawn it, and the court having instructed the jury not to consider it.

4. The charge that if the accused was the aggressor, and the deceased drew his club only for the purpose of resisting further aggressions, this would not be sufficient provocation for the homicide, was pertinent. Furthermore, such charge was given while the court was instructing the jury as to the law of murder. The verdict being for voluntary manslaughter, the charge was not harmful to the accused, even if not authorized by the evidence or his statement.

5. If a party have knowledge of a fact, and the same can be proved at the trial by evidence, a new trial will not be granted on the ground that other evidence of the fact, claimed to be newly discovered, has been found since the trial, unless the movant satisfactorily explains why he did not use the evidence in his control at the time of the trial.

6. The evidence authorized the verdict, and the court did not abuse its discretion in refusing a new trial.

Error from Superior Court, Chatham County; Geo. T. Cann, Judge.

W. C Goodman was convicted of manslaughter, and brings error. Affirmed.

W. C Goodman was indicted at the October term, 1904, of Chatham superior court, for the murder of E. O. Zipperer. On the trial the state introduced only one witness, C. M. Malphus whose testimony was, in brief, as follows: On September 29, 1904, Goodman, Zipperer, and witness were all policemen in the city of Savannah, and were all on duty and in uniform on that day. Goodman and Zipperer, while standing at the doorway of the Union Depot in Savannah on that day, engaged in a conversation about two negroes, one a boarding-house keeper, and the other a drummer for a saloon, who met trains at the station. The conversation at first was apparently friendly; Zipperer asserting that the negroes were causing considerable trouble to the public, and also to the policemen on duty at the station, while Goodman expressed the opinion that they were doing no harm. "Zipperer said he would run them in or drive them away whenever they came there when he was on duty. Goodman said that he would not unless they were obstructing the sidewalk--if they blocked that walk he would run them off; *** and, in the course of the conversation, Goodman said to Zipperer, 'You got no sense. If you had sense you would not act that way' Zipperer said, 'I have as much sense as you have.' He [Goodman] said, 'No; you have not half as much.' Zipperer said, 'Yes; I have as much sense as you;' and Goodman said, 'You have not such a damn thing." Witness, seeing they were getting out of humor, stepped between them, and told them to stop that nonsense, and not make fools of themselves. Just as witness stepped between them, each "caught the other by the collar. Each man had his hand on the other man." Witness was then near enough to shake hands with both of them. Witness could not say which took hold of the other first. They had each other by the coat at the same time. Neither of them had a weapon in sight at that time. About the time they took hold of each other and witness stepped between them, Zipperer said, "Take your hand off me." Both of them had their coats buttoned up, and, as witness stepped between them, each loosened the bottom of his coat and stepped back two steps, so as to make the distance between them 8 or 10 feet. Zipperer pulled his club from his left hip pocket, and had it in his left hand. Goodman pulled his pistol from his holster, and, "as quick as he pulled it out," shot Zipperer. They were still about 8 or 10 feet from each other. After the shot, witness grabbed the pistol, and, after something like a half minute, succeeded in taking it away from Goodman. When the pistol fired, Zipperer dropped to his knees and said, "Oh! my wife and children!" or, "My poor wife and children!" He said this about a second after the pistol fired. When the pistol fired, Zipperer had nothing in his right hand. When he fell from his knees on his back, after he was shot, witness saw a part of the barrel of his pistol exposed in his right hip pocket, the barrel pointing upwards. Zipperer made no effort to draw his pistol. Goodman and Zipperer both had on sack coats, which were long enough to conceal a pistol or club in the hip pocket. They both began to unbutton their coats about the same time. Witness could not say which began first. Zipperer drew his club about the same time Goodman drew his pistol. Witness could not say which was drawn first--the club or the pistol. Zipperer had the club in his left hand a few seconds before he was shot. "It was all done as quick as a wink." Policemen in Savannah are required to carry loaded pistols. The shot fired by Goodman killed Zipperer.

The accused introduced no testimony, but made the following statement: "On the 29th of September I was standing in the driveway at the Union Station, talking to Officers Zipperer, Malphus, and Sergeant Davis. We were talking there about negro drummers around the depot. Officer Zipperer said that he would arrest them every chance that he got. I told him that there was no use to do that, that a man could handle them without arresting them, and that I would not arrest them unless they were obstructing the sidewalk. He said that he would. I said, 'Any man can handle a crowd of negroes without arresting them.' He said he could not, and I said, 'You can if you have any sense.' He said, 'You are a God damn fool.' So then I threw my left hand on his breast, and he threw his right hand to my breast and reached with his left hand for his club. Mr. Malphus stepped between and pushed us back, and said, 'Don't have a fuss;' and, as Zipperer stepped back, he threw his hand to his right hip pocket that way [[[[[[[indicating], and tried to pull his gun. It seems that he made a second attempt. As I seen Malphus between he and I, I tried to strike him on the right shoulder, to try to disable him from using his gun. I thought he was going to shoot me, is the reason I shot him. Mr. Malphus asked me to give him my pistol I still held, and I called Malphus' attention: 'Don't you see that man trying to shoot me?' He then took the pistol sticking out of Officer Zipperer's hip pocket, about that position [indicating]. It seemed that when he pulled at it the hammer caught, and he couldn't get it out of his pocket, and, as he lay, his hand dropped away from the pistol." Malphus testified in rebuttal: "I didn't hear Mr. Zipperer use the expression, 'You are a God damn fool.' He didn't use it."

The first two grounds of the motion for new trial were that the verdict was contrary to law and the evidence. The other grounds were as follows:

"(3) The court erred in charging the jury concerning voluntary manslaughter.

(4) Because the court erred in admitting, against the objection of defendant, then and there made, that the evidence was irrelevant and would illustrate no issue in the case, testimony from the witness Malphus that, immediately after the deceased had been shot and had fallen, the only words that he uttered were, 'Oh, Lord! my poor wife and children!"

(5) Because the court erred, against the objections of defendant's counsel, in permitting the solicitor general in his argument to the jury, to comment upon this language as he did do more than once.

(6) Because the court erred in not declaring a mistrial, when thereto requested by the defendant's attorneys, because of the statement made by the solicitor general to the jury to the effect that the deceased had left four fatherless children. This motion for a mistrial was made after the solicitor general had for the fourth time mentioned this as a fact, and as a part of an earnest appeal to the jury. Up to this time nothing had been said as to this statement by the court or the defendant's attorneys. When the motion for a mistrial was made, the solicitor general said he would withdraw the remark, and the court instructed the jury not to consider what had been said about four fatherless children. The court overruled the motion without further comment. There was no further allusion to the matter by the court.

(7) Because of the prejudicial statement by the solicitor general, set forth in the sixth ground, in his argument to the jury, several times made, to the effect that the deceased had left four fatherless children; there being no evidence as to this, and such a statement being calculated to injure the defendant.

(8) Because the court erred in charging the jury as follows: 'If you believe from the evidence that the defendant was the aggressor, and that he had causelessly laid hands on the deceased, and if you believe that after this the deceased drew his club, and if you believe that this was an act of preparation on the part of the deceased only to resist further aggression, in that event the act of preparation only, if such you find it to be, cannot be alleged by the accused as a sufficient

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