Jordan v. State
| Decision Date | 10 October 1922 |
| Docket Number | 3121. |
| Citation | 114 S.E. 349,154 Ga. 390 |
| Parties | JORDAN v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Where a witness for the state swore on the trial that he was present and saw the homicide committed, and a witness for the defendant subsequently testified that such witness for the state, immediately after the homicide, made to the latter a statement that he (the state's witness) was not present and did not see the homicide, it was competent for the state to prove by another witness that the last-named witness was present and heard the conversation testified about, and that the first state's witness did not say that he was not present, and did not see the shooting. Such evidence of the state's second witness was in effect a contradiction of defendant's witness, and was not objectionable on the ground that it was hearsay.
On the trial of the defendant for murder, the evidence was such as to require the judge to charge the law relating to misfortune or accident as a defense.
Additional Syllabus by Editorial Staff.
Instruction stating defendant's contention that deceased drew a pistol and that defendant seized it, and during the altercation it was fired by deceased, and then charging on self-defense as applied to this contention, held not to cure the failure to charge on misfortune or accident as a defense.
Error from Superior Court, Dooly County; O. T. Gower, Judge.
Robert Lee Jordan was convicted of murder, and he brings error. Reversed.
Watts Powell, of Vienna, for plaintiff in error.
J. B Wall, Sol. Gen., and Jesse Grantham, both of Fitzgerald, Geo. M. Napier, Atty. Gen., and Seward M. Smith, Asst. Atty. Gen., for the State.
Robert Lee Jordan was convicted of the murder of Elmore Whitsett by shooting with a pistol, and, on recommendation of the jury finding him guilty, was sentenced to life imprisonment in the penitentiary. The exception is to a judgment refusing the defendant a new trial. The only special grounds of the motion for new trial complained, first, of the admission of certain evidence; and, second, of the failure to charge Penal Code, § 40, relating to "misfortune or accident" as a defense to a charge of murder. Other facts will sufficiently appear in this opinion.
1. One question was whether the deceased, Elmore Whitsett. or the defendant, Robert Lee Jordan, discharged the pistol that inflicted the mortal wound; there being evidence that at the time of the discharge of the pistol the persons named were in an altercation and struggling over the possession of the pistol. Mike Cobb, a witness for the state, testified that he was an eyewitness to the tragedy, and that the defendant killed the deceased by shooting him with a pistol. For the purpose of contradicting Mike Cobb, the defendant introduced Ben McCoy, who testified that during the same night and after the tragedy Mike Cobb came to witness' house, about 300 yards from the scene of the homicide, and was asked by witness who shot the deceased, and Mike Cobb replied:
To rebut the evidence of Ben McCoy, the state introduced Henry Cobb, who testified that he was with Ben McCoy at the latter's residence at the time stated, and, referring to the statement by Mike Cobb to Ben McCoy after the shooting, the witness testified further that:
"Mike just come up there and said that Robert Lee had shot Elmore; he didn't say anything at all about not having seen the shooting; he said that he come from there."
This testimony of Henry Cobb forms the basis of the only exception to the ruling of the court on the admissibility of the evidence. The testimony of Henry Cobb, quoted above, was admitted over the objection that it was hearsay, and a ground of the motion for new trial complains of that ruling. From the foregoing statement it is manifest that this testimony of Henry Cobb was admissible for the purpose of contradicting Ben McCoy, and was not hearsay.
2. It appears from the evidence that the homicide occurred late in the afternoon at a picnic held at a schoolhouse. The defendant and the deceased were boys about 17 years of age. Mike Cobb, a witness for the state, testified that they became involved in a fight over a dispute as to which one of them should go home with a woman; that the defendant hit the deceased with his fist, and the latter returned the blow after they had been fighting with their fists about five minutes the defendant pulled his pistol out of his pocket with his right...
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