Hicks v. State

• Citation: 31 S.E. 579,105 Ga. 627
• Parties: HICKS v. STATE.
• Decision Date: 13 October 1898
• Court: Georgia Supreme Court

31 S.E. 579

105 Ga. 627

HICKS v. STATE.

Supreme Court of Georgia

October 13, 1898

Syllabus by the Court.

1. An indictment which charges murder "by choking and by other means to the jurors unknown" is not demurrable, on the ground of indefiniteness in its description of the manner of the killing.

2. The competency of a witness is a question for the court, and not for the jury. Under the facts of this case, the court properly admitted the testimony of the witness whose competency was attacked, and there was no error in failing to submit to the jury the question of the witness' competency.

3. The newly-discovered evidence being of an impeaching character there was no error in overruling this ground of the motion for new trial.

4. In the light of the entire charge, there was no error in any of the rulings of which complaint is made. The evidence was sufficient to sustain the verdict.

Error from superior court, Macon county; Z. A. Littlejohn, Judge.

Jeff Hicks was convicted of murder, and brings error. Affirmed.

W. G Harrison, W. G. Munday, and Joseph K. Hines, for plaintiff in error.

F. A Hooper, Sol. Gen., C. R. Crisp, and J. M. Terrell, Atty. Gen., for the State.

SIMMONS C.J.

1. The following special presentment was returned by the grand jury of Macon county: "The grand jurors, *** in the name and behalf of the citizens of Georgia, charge and accuse Jeff Hicks with the offense of murder, for that the said Jeff Hicks, on the 24th day of April, in the year 1898, in the county aforesaid, did then and there unlawfully, and with force and arms, by choking and by other means to the jurors unknown, feloniously, and of his malice aforethought, kill and murder one Miley Hicks, in the peace of the state, being contrary to the laws of said state, the good order, peace, and dignity thereof." When Hicks was arraigned, he demurred to the presentment, on the ground that it was "wanting in that degree of definiteness which defendant has a right to demand before going to trial on the merits of the case, in that the language of said special presentment is too vague and indefinite as to the kind of weapon used and the means used in committing the said murder, as to enable this defendant to prepare his defense to said special presentment." This demurrer was overruled, exceptions pendente lite were taken, and error here assigned thereon.

Section 929 of the Penal Code declares that every indictment should be deemed sufficiently technical and correct "which states the offense in the terms and language of this Code, or so plainly that the nature of the offense charged may be easily understood by the jury." It will be seen from the presentment that the accused was charged with murder, the day and year of the commission of the offense was alleged, and that the killing was done feloniously and with malice aforethought. The manner of the killing was alleged to have been "by choking and by other means to the jurors unknown." The presentment states the offense in the terms and language of the Code, and the nature of the offense could easily be understood by the jury. The accused could likewise understand, from reading the presentment, that he was charged with the offense of murder by choking the woman named in the presentment, or by other means to the jurors unknown. It is argued by counsel for plaintiff in error that there are many kinds of "choking," and he refers to the definitions of the word given by certain lexicographers. The plain, every-day meaning of the word "choking," as we understand it, is to prevent or interfere with the passage of air through the windpipe, either by internal obstruction or by external pressure. To "choke" a person is, in other words, to fill his mouth or throat with a towel or other substance, or to seize and compress his throat, so as to obstruct his breathing. This is what the grand jury meant when they used the word, and this is what the accused must have understood when the presentment was read to him. Upon the subject of the sufficiency of indictments in alleging the mode and manner...