Hanna v. Estridge

• Decision Date: 17 November 1938
• Docket Number: 26921.
• Citation: 200 S.E. 174,59 Ga.App. 182
• Parties: HANNA et al. v. ESTRIDGE.
• Court: Georgia Court of Appeals

200 S.E. 174

59 Ga.App. 182

HANNA et al. v. ESTRIDGE.

No. 26921.

Court of Appeals of Georgia, Second Division

November 17, 1938

Rehearing Denied Dec. 10, 1938.

Syllabus by the Court.

The evidence for the plaintiff was insufficient to authorize the finding that the defendant employee was not justified in killing the husband of the plaintiff. Accordingly, the verdict against the defendant employee, his master and defendant agent by whom he who did the killing was hired, was unauthorized and the court erred in overruling the motion for new trial.

Error from City Court of Thomasville; B. B. Earle, Judge.

Action by E. W. Estridge against H. M. Hanna and others to recover for the wrongful death of W. H. Estridge who died as a result of gunshot wounds inflicted by an employee of one of the defendants. To review a judgment for the plaintiff, the defendant brings error.

Judgment reversed.

STEPHENS P.J., dissenting.

Titus & Dekle and H. H. Merry, all of Thomasville, and Ira Carlisle of Cairo, for plaintiff in error.

Hay & Gainey, of Thomasville, for defendants in error.

FELTON Judge.

The petition alleged that the employee Hawthorne killed the deceased husband of the plaintiff without justification. The answer of the defendants denied this allegation. There was no plea of justification filed. The burden of proof was upon the plaintiff to prove that Hawthorne committed the alleged homicide and that it was without justification. The plaintiff attempted to make out her case by proof of statements made by Hawthorne. Hawthorne admitted the killing but said that he was a deputy game warden; that he saw Estridge in possession of what he thought (and which the evidence shows) was a wild turkey, out of season; that Estridge was on a place adjoining Hanna's; that he called to Estridge to stop so that he could investigate the turkey and make an arrest if necessary; that Estridge refused to stop but ran into the woods; that he followed Estridge continuing to ask him to stop; that Estridge would not stop and submit but that he stopped several times and pointed his shotgun at him (Hawthorne) and threatened to kill him; that after Estridge pointed his gun the first time he pulled his pistol and followed him; that finally Estridge got behind a tree and shot him in the shoulder; that he ducked to dodge the shot; that Estridge whirled and was making an effort to reload his gun to shoot again and that from the stooping position he shot Estridge four times with his pistol; that Estridge's gun jammed; that if he had not shot Estridge it would have been "final" for him. The above covers the extrajudicial statements made by Hawthorne and his testimony on the trial. His extrajudicial statements were not as full as his testimony but they both show the fact of the killing and justification.

The evidence shows that the employee Hawthorne was deputized as an officer of the law by the Commissioner of Game and Fish. He was acting in such capacity without pay at the time of the homicide. The law authorizes such an appointment. Code, § 45-124. As such he had a right to arrest a person violating the state game laws. The uncontradicted evidence shows that deceased had in his possession a wild turkey, the possession of which out of season was a violation of the law. Ga.Laws, 1931, pp. 178, 179. The Code of 1933 omitted turkeys from section 45-308 and put the season for hunting them in § 45-310, but the mere omission from the Code is not a repeal of the law. McCaffrey v. State, 183 Ga. 827 (4), 189 S.E. 825. Since the possession of a wild turkey out of season is a crime, Hawthorne had a right to arrest Estridge upon seeing him violating the law and Estridge was not justified in resisting the arrest. There is no evidence in the case which would authorize a jury to find that Hawthorne killed the deceased except his own statements outside of and in court. These statements admit the killing but claim justification. Such statements are not confessions or incriminating admissions and where the killer is connected with the homicide by his statements alone a jury must accept the entire statement if it shows complete justification. Miller v. State, 184 Ga. 336, 191 S.E. 115, and cases cited. The statements of Hawthorne show complete justification for the killing. He stated that he saw Estridge with what he thought was, and what was shown to be, a wild turkey, out of season, and whether it was on or off the place is immaterial; that he called to him to stop without avail; that Estridge stopped several times, pointed his gun at Hawthorne and threatened to kill him; that he continued to follow Estridge calling on him to stop, until finally Estridge got behind a tree and shot him in the shoulder with a shotgun and wheeled around in an effort to reload his gun and shoot again, whereupon Hawthorne shot him with his pistol and killed him. The only fact testified to in the case which is not in harmony with Hawthorne's statements is the testimony of fourteen year old Mary Spearman. Hawthorne stated that when Estridge shot him with the shotgun he ducked and was shot in the shoulder. The evidence showed that he was shot in the shoulder. He stated that after Estridge shot him the first time he wheeled around in an effort to reload the shot gun and that it got jammed. The evidence showed that Estridge's gun had a shell stuck in it which caused it to jam. Hawthorne stated that while he was stooped over he shot Estridge and the evidence developed that he shot from a position lower than that of Estridge. Mary Spearman testified that she heard five shots on the afternoon of the homicide about the time it is said to have occurred and that the shot gun shot last and the pistol shot first. If her evidence were sufficient to identify the five shots with those involved here it would not make out a case because the only way anyone knows that Hawthorne was connected with the killing is by his own statements, and these statements show justification. The plaintiff cannot make out a case on a self-serving declaration by attacking the same as false without additional evidence connecting the defendant with the killing or showing lack of justification, the burden of showing which was on the plaintiff. In standing up a straw man and knocking it down there is nothing more present than there was to begin with, and the evidence outside the statements not remotely connecting Hawthorne with the killing, or showing lack of justification (because Hawthorne could have been justified even if he had shot first) the verdict in this case is not supported by the evidence.

There is a great deal of evidence in the case which might give rise to various conjectures and speculations from the viewpoints of both the plaintiff and defendant, but which do not in themselves form the basis for any specific finding of definite conclusions. The coroner's jury acquitted Hawthorne and the grand jury returned a no bill. That part of Dr. Palmer's testimony with reference to the injury to the arm of Hawthorne might indicate that Hawthorne could not have fired his pistol after being wounded in the right shoulder. However, Dr....