Hill v. State, (No. 4626.)

• Decision Date: 29 September 1925
• Docket Number: (No. 4626.)
• Citation: 161 Ga. 188,129 S.E. 647
• Parties: HILL. v. STATE.
• Court: Georgia Supreme Court

161 Ga. 188

129 S.E. 647

HILL.

v.STATE.

(No. 4626.)

Supreme Court of Georgia.

Sept. 29, 1925.

(Syllabus by Editorial Staff.)

Error from Superior Court, Fulton County; G. H. Howard, Judge.

Robert Hill was convicted of murder, and he brings error. Reversed.

The grand jury in Bibb county indicted Robert Hill for the murder of J. W. Culpepper by shooting him with a pistol. There was a change of venue, and the case was transferred for trial to the superior court of Fulton county. A verdict was returned finding the defendant guilty, with a recommendation to the mercy of the court; whereupon the defendant was sentenced to be confined at hard labor in the penitentiary of this state, or such other place as the Governor may direct, for the full term of his natural life. The defendant's motion for a new trial was overruled, and he excepted.

Early W. Butler, of Macon, and Leon S. Tomlinson and Brackett & Tindall, all of Atlanta, for plaintiff in error.

John A. Boykin, Sol. Gen., of Atlanta, Geo. M. Napier, Atty. Gen., T. R. Gress, Asst. Atty. Gen., E. A. Stephens, and Ralph H. Pharr, both of Atlanta, and Chas. H. Garrett, Sol. Gen., of Macon, for the State.

Syllabus Opinion by the Court.

ATKINSON, J. [1] 1. The evidence tended to show that the deceased was shot with a pistol about 10 or 11 o'clock Sunday night, the 30th of December; that the ball entered the right side of the neck and almost severed the spinal cord, paralyzing the body from the neck down; that the physician informed him the night he was wounded that he was very seriously injured; that he lingered and died on January 4th; that his father came from Brooks county to see him; that he told his father "he did not expect to live." The evidence was sufficient to lay the foundation for the admission, as dying declarations, of the following statements of the son to his father:

"He said he was in a car with a young lady when he was shot, and the young lady was taken out of the car and carried off, and in about 30 minutes or 40 minutes the negro came back and robbed him of $10 and his overcoat." "My son said, when he was shot some one walked right around the car, and this girl screamed and said, 'You shot him, you killedhim;' and he said, 'Yes; and I will kill you if you don't get out of there.' " Young v. State, 114 Ga. 849 (2), 40 S. E. 1000; Anderson v. State, 122 Ga. 161 (1), 50 S. E. 46; Findley v. State, 125 Ga. 579 (1), 54 S. E. 106; Jones v. State, 130 Ga. 274 (2), 60 S. E. 840; Jones v. State, 150 Ga. 775 (1), 105 S. E. 495; Coart v. State, 156 Ga. 536 (3), 119 S. E. 723.

2. A female witness testified: "He made me lie down, with the pistol, and had intercourse with me." This was admitted over the objection that the defendant was on trial for murder, and not for rape. Immediately preceding this testimony, the witness testified that she and Culpepper had gone riding in an automobile, and, having stopped on "the race track, " Culpepper was about to embrace her, at which time—

"the shot was fired, and somebody came around the car, and I said, 'Oh, you have killed Culpepper;' and he said, 'I don't give a damn.' Then he said, 'Damn you, get out;' he held the pistol at my head, and told me if I didn't get out he would blow my brains out; it was a negro. He took my arm and drug me kind of across the road. I asked him where he was taking me; he said, 'Never mind, come on, ' or he would blow my brains out. He took me 50 or 60 yards from the car, outside the race track, then he just told me what he wanted; he still had the pistol and a stick 5 or' 6 feet long."

The evidence objected to was a part of the res gestæ (Floyd v. State, 143 Ga. 286 [2J, 84 S. E. 971), and tended to show motive upon the part of the ravisher in committing the murder, and identity of the person committing the murder; and, being material and relevant for such purposes, it was admissible on the trial of the murder case, notwithstanding it related to the other offense of rape. Frank v. State, 141 Ga. 243, 80 S. E. 1016; Williams v. State, 152 Ga. 498 (1), 110 S. E. 286; 8 R. C. L. 198, § 194; 16 C. J. 600, § 1165.

3. The fifth ground of the motion for new trial complains of the admission of the following questions and answers made during the examination of a deputy sheriff:

"Q. Did you take his clothes off of him? A. No.

"Q. What did you do in the way of making an examination? A. Unfastened the front of his clothes.

"Q. Did you do that? A. I 'hoped' him. I think I unbuttoned the first button, and he the others.

"Q. Who took his clothes down? A. I did.

"Q. Mr. Stevens, he was under arrest at that time? A. Yes.

"Q. That was after you got him to Atlanta and had put him in the jail here? A. Yes; I had him at the jail.

"Q. What did you find on the surface, if anything, next to the skin, on the inner surface of his underclothing, his drawers? A. There was 'beggar lice.' "

The evidence was objected to on the ground that it forced the defendant to give evidence tending to criminate himself, in that he was led to believe that he would be harmed unless he assisted the officer or if he offered any resistance. There was no merit in this ground of the motion for new trial.

4. The sixth ground of the motion for new trial is:

"Movant contends that the court erred in admitting in evidence the shoes...