Green v. State

• Decision Date: 20 November 1905
• Citation: 52 S.E. 431,124 Ga. 343
• Parties: GREEN v. STATE.
• Court: Georgia Supreme Court

52 S.E. 431

124 Ga. 343

GREEN v. STATE.

Supreme Court of Georgia

November 20, 1905

Syllabus by the Court.

It is competent to prove on a subsequent trial the statement of the prisoner at a coroner's inquest by the testimony of witnesses who profess to remember the substance of such statement; and it is not error for the court to overrule an objection to such testimony, urged on the ground that "the law requires the evidence before the coroner's jury to be in writing, and the writing would be better evidence of what the witness said."

An objection to the admission of the same evidence, on the ground that "the defendant was in the custody of the officers, under arrest, and while thus situated was compelled to give testimony against herself and it was unlawful to require her to make any statement tending to incriminate herself, and therefore such statement would be inadmissible," is equally without merit where the record does not disclose any evidence, either of compulsion or that the statement proved by such testimony was not freely and voluntarily made.

The evidence set out in the second ground of the amended motion for a new trial, being irrelevant, was properly excluded by the court.

When on the trial of one charged with murder the accused admits the homicide, but at the same time states circumstances of justification or alleviation, and the only testimony of witnesses which proves the homicide also discloses circumstances of mitigation or justification, it is error for the court to charge, without qualification, "When a homicide, however, is proven, the burden is on the slayer to justify or mitigate the crime or the offense."

While the charge that "when homicide is proven, the law presumes malice, and, unless the evidence relieves the slayer, he or she should be convicted," is less objectionable, it does not aptly state the law in cases where, whether the admission of the defendant be considered or the evidence of the witnesses, there is no proof of the homicide save such as carries, in immediate connection with it, circumstances which, if believed to be true by the jury would amount to a palliation or justification of the act.

Although a defendant's character is not put in issue, still, where the evidence discloses facts which tend to show that the defendant is a woman of immoral life, it is not hurtful to her for the court to charge that a "woman or person of bad character has the right to defend [herself] upon the same principles as people of good character."

As there were facts and circumstances in evidence which would have warranted the jury to find that at the time of the homicide the deceased was attempting to commit a serious personal injury upon the accused, it was not error for the court to give in charge to the jury the law of voluntary manslaughter.

Before the refusal of a written request to charge the jury will be held to constitute error, it must appear that the request was in itself a correct statement of the law, and applicable to the case.

Error from Superior Court, Polk County; A. L. Bartlett, Judge.

Clem Green was convicted of murder, and brings error. Reversed.

Blance & Tison and Bunn & Warrick, for plaintiff in error.

W. K Fielder, Sol. Gen., and John C. Hart, Atty. Gen., for the State.

BECK J.

The plaintiff in error, Clem Green, alias Clem Nunis, was convicted of the offense of murder. She made a motion for a new trial, based upon the general grounds, and by amendment added substantially the following: (1) That the court erred in admitting to the jury evidence of the defendant's statement before the coroner's jury, in which the defendant admitted shooting the deceased, but contended that she did it because he broke into her house, and was advancing on her with a razor. The defendant objected to the admission of this evidence, on the ground that the law requires the evidence before a coroner's jury to be in writing, and that this writing would be best evidence of what the witness said; and because the witness, being in the custody of officers, was while thus situated compelled to give the testimony against herself, and it was unlawful for her to have been allowed to make a statement tending to incriminate herself, and that therefore this testimony was inadmissible. (2) Because the court withheld from the jury the testimony of Levi Cook to the effect that he had "fixed a clock at Clem Green's house. Jim Davis [the deceased] broke into the door--broke the door open--and fired a shot through the door into the house. This was one or two years before his death. (4) [Should be 3, but numbered 4 in motion]. Because the court erred in charging the jury as follows: 'When a homicide is proven, the law presumed malice, and, unless the evidence relieves the slayer, he or she should be convicted. If the state has failed to establish the guilt of the accused, the defendant should be acquitted.' The foregoing portion of the charge was error under the facts of this case, first, because the very evidence which proved that the defendant committed the homicide also showed complete justification. In this case the state was dependent upon the statement of the defendant for proof of the corpus delicti and, while her statement showed that she did the killing, it also showed that the same was in self-defense. Therefore there could be no presumption of malice against her. (5) Because the court erred in charging the jury as follows 'When the homicide, however, is proven, the burden is on the slayer to justify or mitigate the offense.' The foregoing portion of the charge was error under the facts of this case, because the evidence which showed that the defendant committed the homicide also showed that she was justified in so doing. This was true of all the evidence which tended to show that the defendant committed the homicide. Therefore, the burden was never shifted." Error was also assigned because the court charged: "So also, a woman or person of bad character has the right to defend themselves upon the same principles as people of good character," for the reason that "it amounted to an expression on the part of the court that the defendant was a woman of bad character," as she had not placed her character in issue. The court charged the law in reference to voluntary manslaughter as contained in Pen. Code 1895, § 65. The defendant alleges that that part of the...