Harris v. State

• Decision Date: 11 April 1940
• Docket Number: 13176
• Parties: HARRIS v. STATE.
• Court: Georgia Supreme Court

9 S.E.2d 183

190 Ga. 258

HARRIS v. STATE.

13176

Supreme Court of Georgia

April 11, 1940

Rehearing Denied May 17, 1940.

Syllabus by the Court.

1. An indictment charged Clifford Harris and two others jointly with murder, in that they did with malice aforethough 'kill and murder' Charlie Huff by 'shooting the said Charlie Huff with a certain pistol and thereby inflicting upon the said Charlie Huff a mortal wound, contrary to the laws of said State, the good order, peace, and dignity thereof.' Held:

(a) The words 'kill and murder' considered with the context sufficiently charge death of the victim resulting from the wound inflicted by shot of the pistol. Consequently it was not good ground of demurrer that there was failure to allege that Charlie Huff died as result of the wound. Johnson v. State, 186 Ga. 324, 197 S.E. 786; Reed v. State, 148 Ga. 18(2), 95 S.E. 692; Green v. State, 172 Ga. 635(2), 158 S.E. 285. Nothing to the contrary was held in Daniel v. State, 126 Ga. 541 542, 55 S.E. 472; Walker v. State, 116 Ga. 537(5) 42 S.E. 787, 67 L.R.A. 426; and Baynes v. State, 135 Ga. 219, 69 S.E. 170, cited in the briefs for the plaintiff in error.

(b) Neither was it good ground of demurrer, that, there being several defendants and only one pistol and no charge of conspiracy, it is not alleged which of the defendants did the shooting; or whether defendant Clifford Harris committed the crime in connection with the other defendants in a joint enterprise, or with having committed the crime individually in a separate enterprise. Brannon v. State, 140 Ga. 787, 80 S.E. 7. See Jones v. State, 130 Ga. 274(6), 60 S.E. 840.

(c) The court did not err in overruling the demurrer to the indictment.

2. In article 1, section 1, paragraph 5, of the constitution (Code, § 2-105) it is declared: 'Every person charged with an offense against the laws of this State * * * shall be furnished, on demand, with a copy of the accusation, and a list of the witnesses on whose testimony the charge against him is founded.' In Inman v. State, 72 Ga. 269, a list of the witnesses on which the indictment was founded was furnished to the accused on his demand, but another witness not appearing on the list who did not appear before the grand jury was permitted to testify. Substantially to the same effect was the decision in Echols v. State, 101 Ga. 531, 29 S.E. 14. In a more recent case it was ruled: 'That the name of a witness offered by the State was not indorsed on the indictment, or, if it was son indorsed, that he had not in fact testified before the grand jury, furnished no ground for excluding his testimony.' Taylor v. State, 138 Ga. 826(5), 76 S.E. 347. Held:

(a) By analogy neither would the admission of such testimony be ground for declaring a mistrial.

(b) Accordingly, where as in the instant case the defendant demanded a copy of the indictment and list of witnesses on whose testimony the indictment was founded, and was by agreement of counsel furnished the original indictment on which appeared a list of witnesses, it was not ground for abatement of the indictment or for excluding evidence of a witness whose name appeared on the indictment, that such witness did not in fact appear before the grand jury and give testimony on which the indictment was founded; nor was admission of pertinent testimony of the witness ground for declaring a mistrial.

(c) The court did not err in dismissing the plea in abatement, or in refusing to rule out the testimony of the witness named in the plea in abatement, or in refusing to grant a mistrial.

(d) The decision in Regopoulas v. State, 115 Ga. 232, 41 S.E. 619, is not authority for a different ruling. It was held in that case that the fact that the list furnished in response to the demand of the accused was 'incorrect' is not good ground for a 'motion in arrest of judgment.' But it was added that 'he could have moved for a mistrial of the case when he discovered that the list given him was incorrect.' The reported facts of the case show that by mistake no list of the witnesses who appeared before the grand jury was furnished, but that the name of only one witness was furnished, and that such witness had not appeared before the grand jury. It was with reference to this state of facts that the quoted remark was made. It is apparent that the facts differ from those in the instant case, and that the quoted dictum cannot be applied.

3. In view of the defendant's statement before the jury, to the effect that he was assailed; that the assailant attempted to shoot him with a pistol, and, being prevented by another, he walked off and started to draw the pistol again; whereupon defendant commenced to shoot the assailant, the judge charged: 'A bare fear of the offense of murder, that is, that murder might be committed, a bare fear that murder might be committed, to prevent which the homicide is alleged to have been committed, shall not be sufficient to justify the killing. It must appear that the circumstances were sufficient to excite the fears of a reasonable man, and that the party killing really acted under the influence of those fears, and not in a spirit of revenge.' Held, that the charge was properly adjusted to defendant's contention as shown by his statement, and was not error as alleged, 'because it had the effect of instructing the jury that before movant had the right to kill, * * * it must appear that the circumstances were sufficient to excite the fears of a reasonable man that he was about to be murdered.' See Nail v. State, 142 Ga. 595, 83 S.E. 226.

4. The judge charged the jury 'that a conspiracy consists in a corrupt agreement between two or more persons to do an unlawful act, unlawful either as a means or as an end. This agreement may be established by direct proof or by an inference, as a deduction from conduct, which discloses a common design, on the part of the persons charged, to act together for the accomplishment of the unlawful purposes. This question, that is, whether or not a conspiracy has been established, is for the jury to determine. If you find there was a conspiracy, and that the defendant participated in the common intent and purpose to do what was done, and what was done is that which is alleged in the indictment, then what was done by any other person named in the indictment in pursuance of that common intent and purpose would be just as binding upon him as if he did the act himself. If you find there was no conspiracy, or if there was conspiracy and the defendant did not participate in the common intent and purpose to do what was done, or that what was done was not that which is alleged in the indictment, then anything done by any other person could not be binding upon the defendant in this case.' Held:

(a) It is not a good criticism of this charge, that it was erroneous because a conspiracy was not alleged in the indictment. Dixon v. State, 116 Ga. 186(8, 9), 42 S.E. 357.

(b) Neither was the charge erroneous, as contended, because the evidence failed directly or circumstantially to show any conspiracy between the defendants named in the indictment. There was circumstantial evidence that would have authorized a finding that a conspiracy existed between the defendants to kill the deceased.

(c) If the charge was objectionable upon any ground not taken in the motion for a new trial it was not cause for reversal.

5. The judge gave in charge a requested instruction concerning which he further _____ 'As to whether that principle of law is applicable in this case is entirely a question for you to determine under all the evidence, facts, and circumstances of this case, including the defendant's statement.' The judge also gave another requested charge concerning which he made a statement substantially similar to that relating to that made in reference to the first request. Error is assigned upon these additional statements of the judge, substantially on the ground that they tended to advise the jury that the requested charges which were given 'might not be applicable to' the case, but were applicable 'only to special cases,' and that such statements were harmful and prejudicial to the movant. Held, that there was no error in the added instruction.

6. The judge refused a request to give the following in charge: 'I charge you that in a criminal case, such as the one now on trial, the jury are the judges of the law, in this: that the jury has the right to acquit the prisoner, although the court may charge them that if certain facts be proven he is guilty according to law, and although they may find the facts to be proven. The court is their safe and reliable adviser as to the law.' The request did not state a correct principle of law; and was properly refused. Berry v. State, 105 Ga. 683, 31 S.E. 592; Jillson v. State, 187 Ga. 119(2), 200 S.E. 707.

7. The evidence was sufficient to support the verdict, and there was no error in refusing the motion for a new trial.

Randall Evans, Jr., Jack D. Evans, and James R. Evans, all of Thomson, for plaintiff in error.

J. Cecil Davis, of Warrenton, Ellis G. Arnall, Atty. Gen., E. J. Clower, Asst. Atty. Gen., and C. E. Gregory, Jr., of Decatur, for defendant in error.

ATKINSON Presiding Justice.

1-5, 7. The rulings announced in headnotes 1 to 5, inclusive, and 7 do not require elaboration.

6. The request to charge quoted in headnote 6 is substantially an excerpt from the headnote in McGuffie v. State, 17 Ga. 497(12). The judge in that case charged on request that the jury 'are judges, both of the law and the facts, and have the legal right, both to construe the law and apply the facts,' but added, 'the law as given you in charge by the Court.' In the opinion it was said that the court 'erred in restricting the Jury as he did on this...