Harper v. State

• Decision Date: 21 December 1907
• Citation: 59 S.E. 792,129 Ga. 770
• Parties: HARPER v. STATE.
• Court: Georgia Supreme Court

59 S.E. 792

129 Ga. 770

HARPER v. STATE.

Supreme Court of Georgia

December 21, 1907

Syllabus by the Court.

In a prosecution for the homicide of an arresting officer evidence which tends to show the purpose of the deceased was to effect an arrest, and that the slayer was a fugitive from justice, is competent.

[Ed Note.-For cases in point, see Cent. Dig. vol. 26, Homicide, § 373.]

Resolving any possible doubt as to the admissibility of parol evidence to prove the contents of a collateral writing, in favor of the defendant, under the facts of this case (even if error was committed), it was harmless.

The evidence submitted to the court was sufficient to show that the dying declarations were made in articulo mortis, and that the declarant was at the time conscious of his condition, and there was no error in submitting such to the jury. The charge of the court on the subject of dying declarations was not open to the objections made against it.

[Ed Note.-For cases in point, see Cent. Dig. vol. 26, Homicide §§ 425-428.]

Where it was shown that the bullet which inflicted the wound was metal jacketed, and the wound was infected, it was proper to allow an expert to testify that a bullet of that character would produce infection, and that an inflammatory condition would follow.

"It was not error to inform the jury that the prisoner was not subject to be cross-examined on his statement without his consent."

In a prosecution for homicide, where the state omits to offer a witness who was present at the place of the homicide, but who is not shown to have seen the killing, and relies on circumstantial evidence, incriminating admissions, and the dying declarations of the deceased to establish the defendant's guilt, and where the witness is in court accessible to the defendant, it is not error for the court to refuse to charge Pen. Code 1895, § 989, relating to the "presumption arising from failure to produce evidence."

An officer may arrest an escaped felon without a warrant, and, if such escaped felon slay the officer, without notice of his official character, solely to prevent an arrest, the crime is murder.

[Ed. Note-For cases in point, see Cent. Dig. vol. 26, Homicide, §§ 33, 34.]

Error from Superior Court, Murray County; A. W. Fite, Judge.

John Harper was convicted of murder, and he brings error. Affirmed.

W. W. Sampler and Griffin & Attaway, for plaintiff in error.

C. L. Henry, C. N. King, Geo. G. Glenn, Sam P. Maddox, Sol. Gen., and Jno. C. Hart, Atty. Gen., for the State.

EVANS P.J.

John Harper was convicted of the murder of Ben C. Keith, and excepts to the court's refusal to grant him a new trial. The proof submitted by the state disclosed that the homicide occurred under these circumstances: A warrant had issued from the superior court of Fannin county against the defendant for a murder alleged to have been committed in that county in December, 1906. He had eluded the officers of Fannin county, and had taken refuge in Murray county, passing under an assumed name. The deceased was the sheriff of Murray county, and had been pointed out to the defendant as such. The deceased received notice that the defendant was domiciled at a certain house in Murray county, and was wanted by the authorities of Fannin county to answer to the crime of murder. Accompanied by a posse, on July 25, 1907, the sheriff went to the house where the defendant was staying to effect his arrest. The defendant was not at the house, and the sheriff and posse stationed themselves so as to keep the house under surveillance. The deceased and a young man named Foster concealed themselves behind a stump. About 9 o'clock at night the defendant came along the highway, and was commanded by the sheriff to halt. As soon as the sheriff called upon him to halt, he fired upon the sheriff. The sheriff returned the fire. The defendant fired two or three times, inflicting a mortal wound, which caused the sheriff's death three or four days later. The defendant was immediately taken in custody. He was armed with a very large pistol, loaded with metal capped bullets. He was asked why he carried the pistol, and replied "that he didn't aim to go back to Fannin county, and aimed for that gun to defend him." He said that he shot the deceased to get away from him.

1. The court allowed in evidence a postal card, containing an offer of reward for the arrest of the defendant, who was said to be wanted in Fannin county for the assassination of J. A. England on December 21, 1906. The postal card gave a minute description of the defendant. The card was unsigned. Objection was made to the card being received in evidence, on the ground that it was irrelevant, and the statement in the card that the defendant was wanted for assassinating one England, was calculated to arouse the prejudice of the jury. It was shown that this card had been given to the deceased. The state submitted evidence tending to show that the defendant had escaped from Fannin county, and was evading arrest for a crime committed in that county. The deceased was the sheriff of the county where the fugitive had taken refuge. The offense committed by the fugitive was a felony, and the sheriff or any private person may lawfully arrest a fugitive felon upon reasonable and probable grounds of suspicion of his guilt. Pen. Code 1895, § 900; Snelling v. State, 87 Ga. 50, 13 S.E. 154. Upon proof that the deceased was acting upon information derived in part from this postal card, it was admissible as explanatory of the conduct of the deceased at the time of receiving his mortal wound. The denomination of the homicide as an assassination would not render the card inadmissible. A bench warrant against the defendant issued from Fannin superior court upon an indictment for murder was allowed in evidence. The warrant was admissible as one of the elements tending to show that the defendant was a fugitive from justice. The language of Lumpkin, J., in Small's Case, 99 Ga. 31, 25 S.E. 614, is peculiarly appropriate to the facts of the present case: "The vitally controlling issue in the case was whether, in committing the homicide, the accused was resisting a lawful attempt to arrest him, or in good faith making a defense against an unlawful assault upon himself, or what he honestly believed was such an assault. The motives of the accused were directly in issue, and any evidence fairly illustrating or throwing light upon the same was competent as being explanatory of his conduct under the surrounding circumstances."

2. The court allowed a witness, the sheriff of Fannin county, to testify that he received a telegram from one Russell, asking if the defendant was wanted in Fannin county for murder, and that he replied that the defendant was wanted. The objection to this testimony was that the telegrams were the best evidence of their contents. Mr. Russell, who sent the telegram of inquiry, and received the reply, testified that he communicated the information derived in this way to the deceased, and accompanied the deceased as a member of the posse to arrest the defendant. The exception to this testimony relates to the mode of proof, and not to the competency of what was therein contained as evidence. Even if it was error to allow parol proof of the contents of the telegrams, such error was not prejudicial to the accused. Russell testified that he had given the information derived from the telegrams to the deceased, and the only effect the alleged objectionable testimony could have had was to disclose the source of Russell's information. It was immaterial through what medium Russell obtained his knowledge that the defendant's arrest was desired by the Fannin county officer. He did give this information to the deceased, upon the faith of which deceased acted. The source of Russell's information was not an issue, and the defendant was not hurt by the court allowing parol proof of the telegrams.

3. The deceased was shot Wednesday night, and died the following Sunday. The state offered three witnesses to prove the dying declarations of the deceased as to the cause of his death and the person who killed him. The declarations were made by the deceased, respectively, Wednesday night, Thursday, and Friday evening before his death. The objection was that the evidence did not disclose...