Hamilton v. State

• Decision Date: 17 December 1929
• Docket Number: 7227.
• Citation: 151 S.E. 17,169 Ga. 613
• Parties: HAMILTON v. STATE.
• Court: Georgia Supreme Court

151 S.E. 17

169 Ga. 613

HAMILTON v. STATE.

No. 7227.

Supreme Court of Georgia

December 17, 1929

Syllabus by the Court.

The raison d'etre of a court of review is the correction of errors alleged to have been committed by subordinate tribunals; but as a general rule the lower court must have an opportunity to correct its own errors. An objection to the admission of evidence must be presented to the lower court before a court of review can deal with such alleged error. An objection in the lower court to the admission of evidence upon a specified ground does not authorize a court of review to reverse the judgment of the trial court upon grounds of objection not presented to the trial court. An objection to testimony from a nurse, that a patient said that "he liked to have shot me again," upon the ground that the evidence was inadmissible because the person making the statement did not name the person referred to as "he," will not support an objection raised for the first time after the trial, based upon the ground that the statement was inadmissible as a dying declaration, because it had not been shown that the person making the statement was dying and conscious of his condition. The court did not err in holding the evidence objected to admissible as against the objection urged.

The exceptions set forth in the fifth, sixth, and seventh special grounds of the motion for a new trial do not authorize a reversal of the judgment refusing a new trial.

The evidence authorized the verdict of guilty.

The court did not err in overruling the motion for a new trial upon any ground set forth therein.

Error from Superior Court, Gwinnett County; W. W. Stark, Judge.

Charlie Hamilton was convicted of murder, and he brings error. Affirmed.

Charge that provocation by threat is no defense to murder held not erroneous as inapplicable to defense based on fears of reasonable man or as confusing jury on question of voluntary manslaughter. Pen.Code 1910, §§ 61, 65, 70, 71, 73.

The defendant was tried upon an indictment charging him with the murder of Fletcher Riley. He was convicted, and exception is taken to the judgment overruling his motion for a new trial. Besides the general grounds, the motion contains four special assignments alleging errors of law on the part of the court in the trial of the case, as follows: (1) Because the following material evidence was illegally admitted to the jury, over the objection of the applicant, to wit: When Miss Blonnie Hope was on the stand as a witness for the state, and after she had testified that she was a professional nurse and that she was with the deceased before he died at Downey's Hospital on February 22, and that at the time the deceased was in a serious condition, but after they gave him a blood transfusion he looked much better, she was permitted to testify as follows:

"Q. Did you hear him make any statement that day? A. Yes, sir.

"Q. Anything about the shooting? A. He didn't mention this man's name at all.

"Q. You say he did make a statement about it? A. He said he liked to have shot me again.

"Q. When did he make that statement? A. That was in the early part of the morning, Saturday morning, before day, while the nurse was out of the room.

"Q. Was that all he said about it? A. That's all he said; the man's name was not mentioned.

"Q. Now, what time did he die? A. He died at twenty minutes until nine, Eastern time."

Movant objected to the admission of the statement, "He said he liked to have shot me again," and at the time it was offered the ground of objection was: "I think the statement, what he said, couldn't be admissible when he didn't say anything about who shot him." It is insisted that the admission of the testimony was hurtful and prejudicial, "for the further reason that as his defense was based on the grounds of the fears of a reasonable man that the deceased intended and was about to commit a felonious assault upon him when he shot him, and that he only fired one time, for the court to permit the statement excepted to, that the deceased said 'he liked to have shot me again,' practically destroyed his defense as aforesaid." It is also insisted that the introduction of the evidence was hurtful to the movant, said evidence not coming up to the rule as to dying declarations, for lack of proof of the fact that the declarant was conscious that he was in a dying condition.

In the second special ground of the motion the movant complains that the court, after giving the Code definition of express malice, said to the jury: As, for instance a case of express malice would be where a man arms himself and waylays to take the life of another." It is insisted that the statement of the supposititious case instanced by the court was error, because: (a) "The evidence for the State showed that the defendant was armed with a pistol and had been standing several minutes in front of the picture-show and drug-store when the deceased came along, and that a difficulty ensued and as a result the defendant shot the deceased. By using the illustration as aforesaid, it amounted to an expression of an opinion on the part of the court." (b) The use of the language quoted was prejudicial to the defendant, because it appeared to be an illustration that would fit the particular facts of the case on trial; and because the jury were likely to get the impression that the purpose of the illustration was to apply to the facts of the particular case. (c) The illustration is an incorrect statement of the law, for the reason that it would not apply in a case of express malice, but to implied malice.

In the third special ground of the motion it is insisted that the giving in charge of that portion of section 65 of the Penal Code which declares that "provocation by words, threats, menaces, or contemptuous gestures shall in no case be sufficient to free the person killing from the guilt and crime of murder," was error, because: (a) The defense was based on the fears of a reasonable man, the accused contending that the deceased had knocked him down at the time he fired the fatal shot, and as he lay upon the ground the deceased threw his hand to his hip pocket and was advancing upon him, which defense was supported by evidence as well as the defendant's statement; and, though the instruction is a correct proposition of law, it was so inapplicable to the case on trial that it had the effect of destroying the defense.

(b) The instruction confused and misled the jury, the court nowhere instructing them that the charge excepted to applied only on the question of voluntary manslaughter, and nowhere instructing them that they should not consider this part of the charge in considering defendant's defense that he killed the deceased acting under the fears of a reasonable man.

(4) The court charged twice, in different portions of his instructions: "If you find there was no motive on his part to commit the act, you may consider that, along with all the other evidence in the case, in deciding whether the defendant is guilty or not, especially if the evidence leaves the defendant's guilt at all doubtful. Yet, if the evidence shows the commission of the crime and you are satisfied beyond a reasonable doubt that the defendant committed it with malice aforethought, either express or implied, and the circumstances are consistent with his guilt and inconsistent with any other reasonable hypothesis save that of the guilt of the accused, though the evidence may not disclose motive, you would be authorized to find the defendant guilty." The movant says the repetition of this charge unduly stressed the proposition that the jury would be authorized to convict in the absence of motive, and that it was especially hurtful and prejudicial in view of the fact that the jury convicted the defendant of murder and not a lesser offense.

A. G. Liles, of Buford, and O. A. Nix and I. L. Oakes, both of Lawrenceville, for plaintiff in error.

Clifford Pratt, Sol. Gen., of Winder, John I. Kelley, of Lawrenceville, Geo. M. Napier, Atty. Gen., and T. R. Gress, Asst. Atty. Gen., for the State.

RUSSELL, C.J. (after stating the foregoing facts).

We will deal first with the errors assigned in the special grounds to the motion for a new trial; for if one charged with crime is deprived of any right by the failure of the court, or if upon his trial he is not allowed every right and privilege accorded by law, in my opinion he would be entitled to a new trial, no matter how strong might be the evidence of his guilt. The great state of Georgia guarantees the enforcement of her laws, as much, though for the protection of citizens charged with crime (and who are presumed to be innocent until lawfully convicted) as for the protection of the law-abiding citizenry and the honor of the commonwealth. Especially is the foregoing statement true in a capital case where the jury may of its own motion, without any reason whatever, change the penalty of death to that of imprisonment for life in the penitentiary. We have carefullyconsidered all of these assigned errors of law, and have reached the conclusion that no one of them requires the grant of a new trial.

1. Miss Blonnie Hope, a professional nurse in the hospital to which the decedent was sent very shortly after being shot by the accused, was permitted to repeat a statement of the decedent that "He liked to have shot me again." It is now strongly argued by able counsel for the accused that no foundation was laid for the admission of this statement; and the counsel for the state take the position, which is supported by numerous decisions of this court, that the foundation, to wit, that the declarant was in a dying condition and that he was conscious of his approaching death, can be inferred from...