Green v. State
| Decision Date | 18 August 1922 |
| Docket Number | 3089. |
| Citation | 113 S.E. 536,154 Ga. 117 |
| Parties | GREEN v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
The superior courts of this state may grant new trials where material evidence may be illegally admitted or illegally withheld from the jury against the demand of the applicant but such grant of a new trial is not demanded in all cases where competent and relevant testimony is withheld from the jury.
Where the rejected evidence relates to the main transaction, and tends to sustain the defense set up by the defendant, the rejection of such evidence would require the grant of a new trial; but when it relates to some collateral matter, and the evidence touching the main transaction makes a clear case of guilt, the rejection of such evidence does not in all cases require the grant of a new trial.
Where guilt is clearly established, slight error in the exclusion of evidence does not require the grant of a new trial.
The court did not err in refusing to continue or postpone the case in order to permit the defendant to procure the testimony of his family physician, who would testify that he had prescribed the use of whisky for the wife of the defendant, when suffering from a given complaint, the evidence disclosing that the defendant had a bottle of whisky at the time and place of the homicide, which he claimed that he had procured for his wife under this advice of his physician, as the excluded evidence would not probably have changed the result, and the verdict being right with the excluded evidence in or out.
A new trial will not be granted for a refusal of the court to continue or postpone a case for the purpose of obtaining the testimony of an absent witness by whom the defendant expected to prove, in a certain matter, testimony in substance the same as the undisputed evidence introduced by the state in reference to such subject.
To render dying declarations admissible, they must be made at a time when the declarant is in the article of death; but if the declarant was in fact in the article of death, and the circumstances indicate that he must have known it, it is proper to allow declarations made by him to be proved, with instructions that the jury find whether made consciously in articulo mortis.
If at the time of making the declarations the condition of the wounded party making them, the nature of his wounds, the length of time after making the declarations before he expired, and all the circumstances make a prima facie case that he was in the article of death and conscious of his condition, such declarations should be admitted in evidence by the court under proper instructions to the jury.
The court did not err in admitting the declaration of the deceased that the defendant "sure did not have to shoot me," over objection on the grounds (a) that no proper foundation was laid for its introduction, and (b) that the statement was a mere conclusion or opinion of the deceased; a prima facie case for its admission having been made, and the same not being a mere conclusion or opinion.
The court did not err in its charge on the subject of dying declarations, on the grounds (1) that there was no legal and sufficient evidence to warrant the same; and (2) because the alleged dying declaration on which this charge was based was a mere opinion of the deceased.
The verdict is supported by evidence, and is not contrary to law.
Additional Syllabus by Editorial Staff.
Where a subp na for an absent witness was issued in due time and turned over for service to an officer, who attempted to serve him in ample time before the trial, but the witness had left the state, and neither defendant nor his counsel knew of his intention to do so, due diligence was exercised.
Error from Superior Court, Tift County; R. Eve, Judge.
J. M S. Green was convicted of murder, and he brings error. Affirmed.
J. M S. Green was indicted for the murder of Daniel Sutton. The evidence for the state was as follows:
Tom Barfield testified as follows:
I am a son-in-law of Daniel Sutton. Was with him on Sunday, July 3, 1921. Went with the deceased late in the morning of that day to J. J. Cravey's home. Cannot say how long the deceased and I had been at Mr. Cravey's before Green came, but had been there an hour. Green came to Cravey's in a buggy, driving a mule. Sutton and I remained at Cravey's, after Green came, some 30 minutes. Left Mr. Cravey's in the buggy with the deceased. There is a gate between Mr. Cravey's and the public road. Green was ahead in his buggy. We all left Cravey's together. When we went through the gate, I got in the buggy with Green, after opening and crossing the gate. Green drove away first, and Sutton was behind in his buggy. Detected an odor of whisky after getting in the buggy with him. He did not appear to be intoxicated. They stopped, to get water, at my brother's house, which is on the right-hand side of the road, going in a northerly direction. The house is close to the road. Both Green and Sutton stopped their buggies right under the China trees, before they got to the front gate. Green's buggy was about 10 feet from the front gate. Sutton stopped his buggy right behind Green's. Green drove up to the house, turning in to the right, and then cut around to the left toward the road. Sutton drove up behind him and cut his mule around in the same direction. That put the two buggies fairly close together. Just before I got to the well, I heard Green tell Sutton he had been throwing off on him. Looked around when I heard them saying that, and saw the old man put his hands in Green's breast lightly, and said, "I have not done it." Green said, "You are a liar," and hit him. Sutton was not striking at Green, but just put his hand on his breast in a friendly way. It looked like Green struck Sutton in the breast, and, when he struck him, then Sutton struck Green. They just run up together and clinched, and fell in the yard. The old man threw Green on his back, and got on top of him, and held his arm while he was on the ground. Did not hear Sutton use any profanity whatever to Green, prior to that time, and while they were on the ground. While they were on the ground, Sutton did not strike Green. He never offered to strike him at all. That was all that occurred while they were on the ground. Sutton held Green there, until I went there and tried to get them up, and not to have any trouble. Kept on talking with them.
After awhile Sutton asked Green if he had not got enough of it. Green said, "No." Sutton did not say a word at that time, just held him right on, and I kept talking to them. Told Green to get up and not to have nothing like that here. I told him, "If you will be all right, Mr. Sutton will." Sutton then asked Green again if he had enough, and he then said he did. Sutton just turned him loose and got up. After they got up, all of us went out back in the road. Before we went out in the road, I brushed the dirt off Mr. Green's clothes. At the time Green got up, Sutton did not strike him at all. Didn't make an effort to hit him. Don't know how many times Sutton struck Green. Couldn't say that either one of them hit over a lick apiece; then they went together and down on the ground. As we went out of the gate the buggies were to the south, and we went to the buggy. I stopped at Green's buggy, and old man Sutton walked to the back of the buggy and stopped. Went back of Green's buggy, and that placed him between Green's buggy and his buggy, or the front of his buggy, or something like that. He was standing at the front wheels of his buggy, and to the rear wheel of Green's buggy. The rear wheel of Green's buggy and the front wheels of Sutton's buggy were about 2 or 3 feet apart. They stood there some little bit, and Sutton said, "You ought not to want to fight me; I have not got any gun and you have." Nothing was said before that. After they came out to the buggy, and after Sutton said that, Green took his gun out of his front pocket, threw it on the ground between the two men, and said, "Take this here and use it." It was a 38 special pistol, and shoots long-range cartridges, they say. When Green threw his pistol down on the ground, Sutton said, "I don't want your gun, don't need your gun; I don't want to hurt you," and told Green to pick up his gun. Green picked it up and laid it in the front of his buggy, which was immediately in front of Sutton's buggy. When Green picked up the pistol, he did not say anything right then, and the next thing he said was, "Let's take a little drink." Sutton said, "I don't want any whisky;" and then is when Green shot him.
Sutton had not been drinking any that morning, that I know of. Had been in the buggy with him and close to him that morning. Just immediately before the pistol fired I had turned around and was looking at Sutton. He did not have a thing in his hand. He had not used any profanity at all towards Green at any time during this discussion. He had not cursed him. I turned around to get in the buggy, and that threw my face in a northerly direction, and then Green shot Sutton. He got his pistol, came around by me, and then shot Sutton. When he stepped around me, he stepped between me and the seat, and that threw him between the hind wheel of his buggy and the body of his buggy, and after getting into that position he reached over and shot Sutton. Could not hardly say how close that put the two men together, but it was not very far--they were right together. The ball struck Mr. Sutton in the stomach. The last time I saw Sutton, which was when he looked around just before he was shot, he had not changed his position from what it was before Green shot him, or at the time. When I looked and saw Green had shot him, I saw him fall, and when he fell he was to the south of the...
To continue reading
Request your trial