Howell v. State

• Docket Number: 5152.
• Decision Date: 10 March 1926
• Citation: 134 S.E. 59,162 Ga. 14
• Parties: HOWELL v. STATE.
• Court: Georgia Supreme Court

134 S.E. 59

162 Ga. 14

HOWELL v. STATE.

No. 5152.

Supreme Court of Georgia

March 10, 1926

Rehearing Denied June 28, 1926.

Syllabus by the Court.

The court charged the jury as follows: "This case is here before you regularly to be tried, every necessary step having been taken in this court to give you jurisdiction to try and determine this issue." Error is assigned upon this charge, upon the ground that "said charge was not authorized by the evidence, there being no proof whatever on which to base the same. There is nothing in the evidence to show that the superior court of Houston county had jurisdiction to try this case growing out of a homicide committed in Bibb county." There is no merit in this assignment, for, after the indictment for murder was returned, there was a petition filed by the accused for a change of venue, which was granted, and the clerk of the court in which the indictment was pending, in accordance with the terms of the statute, transmitted a certified copy of the order and the other papers in the case to the county in which the trial was to take place. After these papers were filed in the office of the clerk of the superior court in the county to which the case was removed, the order changing the venue became a part of the record in the case, and the court in charging the jury was authorized to state to them as a matter of law that the case was properly in that court for trial. Penal Code 1910, § 965.

(a) Jurisdiction in the facts of this case is a question for determination by the court, and not the jury, and the failure on the part of the state to introduce in evidence before the jury a certified copy of the petition and order for change of venue is not a good ground of objection made in this court for the first time.

(b) The superior court trying the case will take judicial cognizance of what has transpired in the superior court of the county where the change of venue was ordered, there being a certified copy of such proceedings in the court of the county to which the case has been transferred, and being considered by the same judge who ordered the change. It was not error for the court to consider such record.

It was not error for the court to allow a witness for the state to testify that the deceased "had been with the sheriff's office in Bibb county about ten days before his death. He went there about the 5th or 6th of May, and had been serving regularly during that time as far as I know," over objection on the ground that, if the deceased was a deputy sheriff, there was higher and better evidence of the fact than the oral statement of the witness which was a mere conclusion, etc.

It was not error, under the facts of this case, for the court to charge the jury that, if the deceased was an officer, and undertook to arrest the defendant, he had the right to arrest him if at the time he knew whisky was in his possession, or he was transporting liquor, "provided you think beyond a reasonable doubt that Green [the deceased] was a duly authorized officer for the purpose of making the arrest, and if he shot him for that reason to prevent him from arresting him, and that was the only reason, then he would be guilty of murder, if that was the only motive." Proof that a person acts as a public officer is prima facie sufficient to show that he is such officer. Even if the officer has not taken the prescribed oath, his official acts are legal.

Evidence of threats made by a defendant against a class of persons to which the deceased belonged at the time of the homicide is admissible. Evidence that is material and relevant, offered by the state in the prosecution of one for a violation of the criminal law, is admissible, even though it may tend incidentally to put the defendant's character in issue.

It was not an expression of OPINION, under the facts of this case where counsel for plaintiff in error, during the progress of the case, moved to rule out the evidence of a certain witness on the ground that "he has given only an opinion," for the court to say "he is giving facts." Much of the evidence is not opinion evidence, but is a statement of facts; and, where an opinion is expressed by the witness, the facts are given on which the opinion is based.

(a) A judge may not express his opinion to the jury, but if, in the decision of any legal question as it arises, he must pass upon the facts, the rule does not apply.

(b) It is not error to overrule a motion to rule out all the evidence of a witness en bloc, where it appears that some of it is admissible.

The charge of the court set out in division 5 of the opinion is not erroneous, as against the defendant, for any reason assigned.

(a) "The mere fact of an unlawful arrest will not alone authorize the killing of an officer making it. But if, in the progress of the transaction, the officer is about to commit a felony upon the other party, or so acts and makes such show of violence as to excite in the person sought to be arrested the fears of a reasonable man that a felony is about to be committed on him, and such person acts under the influence of those fears, and not in a spirit of revenge, he may protect himself, although it may be necessary to slay the officer for that purpose."

(b) If the motive of one shooting and killing another is solely to prevent an illegal arrest, he would be guilty of manslaughter; but, if such an one shoots and kills another at a time when there is no actual or apparent necessity to do so, either to save his own life or to prevent a felonious assault from being committed upon him, he would be guilty of murder.

(c) An officer in this state may arrest one for a crime committed in his presence without a warrant. A crime is committed in the presence of an officer, if he sees it committed, or by the exercise of any of his senses he has knowledge, together with what he sees, that a crime is being committed by the person sought to be arrested.

The judge charged the jury that "a reasonable doubt is a doubt that is reasonable, growing out of the consideration of the evidence in the case." The criticism of this charge is that the judge charged in effect that a reasonable doubt is a doubt growing out of the consideration of the evidence alone, etc. Immediately following the above charge on the subject of reasonable doubt the court also instructed the jury on the defendant's statement, and informed the jury that they might believe this statement in preference to the sworn evidence in the case. In view of the entire charge, the criticism on the charge with respect to reasonable doubt is without merit. Phillips v. State, 149 Ga. 255 (5) 99 S.E. 874. See Wall v. State, 153 Ga. 309 (6), 112 S.E. 142; Giles v. State, 6 Ga. 276 (6).

Other grounds of the motion for new trial, not specifically dealt with, are without merit.

The evidence was sufficient to authorize the verdict, and the court did not err in refusing a new trial.

Error from Superior Court, Houston County; H. A. Mathews, Judge.

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

Russell C.J., and Atkinson, J., dissenting.

W. A. McClellan and T. A. Jacobs, Jr., both of Macon, and Duncan & Nunn, of Perry, for plaintiff in error.

Chas. H. Garrett, Sol. Gen., of Macon, and Geo. M. Napier, Atty. Gen., and T. R. Gress, Asst. Atty. Gen., for the State.

HILL J.

John Howell was indicted by the grand jury of Bibb county at the April term, 1925, of Bibb superior court, charged with the offense of murder by shooting Harry Green with a pistol, causing his death. Shortly after the indictment was returned, the defendant filed a petition to Judge H. A. Mathews, presiding in Bibb superior court, under section 964 of the Penal Code of 1910, asking for a change of venue, and alleging that, because of popular prejudice, it would be impossible for him to secure a fair and impartial trial in Bibb county, and that there was grave danger of his suffering from mob violence if brought to trial in Bibb county, and particularly if he should be acquitted. After a hearing on this petition, Judge Mathews granted an order changing the venue from Bibb to Houston county, and providing for the transmission of the papers, etc., and for the delivery of the prisoner to the new jurisdiction. A special term of Houston superior court was called for the purpose of trying the defendant, and he was put upon trial in Houston superior court, was found guilty by the jury without a recommendation, and was sentenced by the court to suffer the penalty of death by electrocution, as provided by law. A motion for new trial was filed by the defendant, which was overruled, and he excepted.

1. On the call of the case in this court the defendant in error suggested a diminution of the record, and filed a motion in this court asking that the clerk of Houston superior court be required to certify and send up as a part of the record in the case certain additional proceedings, and alleged substantially the following facts: That the brief of the evidence in this case shows that the homicide was committed in Bibb county, Ga.; that the indictment in the case, a copy of which is in the record now before the court, shows that it was returned by the grand jury of Bibb county; that there is of record in the office of the clerk of Houston superior court a petition for change of venue, filed by the plaintiff in error in Bibb superior court, in which the plaintiff in error, under the Penal Code of 1910, § 964, prayed for a change of venue for the reasons set out above; that there is also of record in the clerk's office of Houston superior court an order of Hon. H. A. Matthews, judge of the superior courts of the Macon circuit, presiding in Bibb superior court, granting this petition for change of venue,...