Green v. State, 18607

• Decision Date: 13 July 1954
• Docket Number: No. 18607,18607
• Parties: GREEN v. STATE.
• Court: Georgia Supreme Court

Page 703

82 S.E.2d 703

210 Ga. 745

GREEN v. STATE.

No. 18607.

Supreme Court of Georgia.

July 13, 1954.

Robert B. Williamson, Sylvester, for plaintiff in error.

J. Bowie Gray, Sol. Gen., Tifton, Eugene Cook, Atty. Gen., Rubye G. Jackson, Atlanta, for defendant in error.

Syllabus Opinion by the Court.

DUCKWORTH, Chief Justice.

Henry Green was indicted, tried and convicted of the murder of Nervie Cooper without a recommendation of mercy in Worth Superior Court. A motion for new trial, as amended by adding four special grounds, was overruled, and the exception here is to that judgment. Held:

1. Conceding but not deciding that the testimony of the witness that the deceased, approximately 45 minutes before she died, said that she was shot by the accused, was not admissible as a dying declaration, any error committed was rendered harmless by the defendant's unsworn statement in which he admitted that he shot the deceased. Broadnax v. State, 31 Ga.App. 736, 122 S.E. 96; Carrigan v. State, 206 Ga. 707(4), 58 S.E.2d 407; Seymour v. State, 210 Ga. 21(2), 77 S.E.2d 519. Accordingly, there is no merit in the first special ground of the amended motion, complaining of the allowance of this testimony in evidence.

2. Since the State did not rely upon circumstantial evidence alone, there being direct evidence of the guilt of the accused, the court did not err in failing to charge that, before a conviction could be had upon circumstantial evidence alone, the proven facts must not only be consistent with guilt but must exclude any other reasonable theory or hypothesis save the guilt of the accused. See Harris v. State, 152 Ga. 193, 108 S.E. 777; Bowen v. State, 181 Ga. 427(4), 182 S.E.2d 510. The second special ground, complaining of the court's failure to thus instruct the jury, is therefore without merit.

3. Where there is evidence showing that the defendant admits the killing, and he states no facts or circumstances of excuse or justification, or gives reasons which are insufficient, if true, to constitute a legal excuse or justification, the admission or statements amount to a confession of guilt and authorize a charge on that subject. Edmonds v. State, 201 Ga. 108, 123, 39 S.E.2d 24; Harris v. State, 207 Ga. 287, 61 S.E.2d 135. Immediately after the shooting, the accused was asked why he did it. One witness stated his reply was, 'I done bout killed de little girl, and shot Miss Nervy. I done messed up.' Another witness testified his answer was, 'Uncle Henry, you know I wasn't going to let her kill me.' Another admission was made to the sheriff by the accused after his arrest, in which he stated that the deceased carried a 'cutter' (sharp pointed turpentine tool) in her bosom, and that when she reached in her bosom he started shooting, and his unsworn statement to the jury was that he shot her in self-defense. None of these statements amounts to a confession wherein he acknowledged himself to be guilty of the offense charged but they only admit the fact that he shot the deceased, and the court erred in charging the law of confessions, the effect of such charge being to instruct the jury that they might believe from the above a confession had been made, when in...