Josey v. State

• Decision Date: 12 March 1912
• Citation: 74 S.E. 282,137 Ga. 769
• Parties: JOSEY. v. STATE.
• Court: Georgia Supreme Court

74 S.E. 282

(137 Ga. 769)

JOSEY.

v.STATE.

Supreme Court of Georgia.

March 12, 1912.

(Syllabus by the Court.)

1. Homicide (§ 169*) — Evidence—Admissibility.

On the trial of one charged with the murder of his wife, evidence is admissible which tends to show that for a long period of time prior to the homicide, and until a short time prior thereto, the defendant was cruel to and illtreated his wife, as tending to show malice and motive, and to rebut the presumed improbability of a husband murdering his wife. 6 Enc. Ev. 717, 718.

(a) In such a case, it is not necessary that all of such acts should be proved by the same witness.

[Ed. Note.—For other cases, see Homicide, Cent. Dig. §§ 341-350; Dec. Dig. § 169.*]

2. Charge Not Erroneous.

Considered as a whole, there was no error in the charge complained of in the second division of the opinion.

3. Criminal Law (§ 825*)—Trial—Instructions—Necessity fob Request.

Where one who is charged with the murder of his wife relies upon the defense of misfortune or accident, and the trial judge has correctly given the law in charge to the jury on that subject, it is not error for the court to fail to state the contention of the defendant that he relies upon accident as having caused the homicide, in the absence of a request so to do, especially where it is manifest, from the judge's charge on this subject, what the defense is upon which the defendant relies.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 2005; Dec. Dig. § 825.*]

4. Homicide (§ 18*)—Instructions—Intent.

It is not error for the court to charge the jury, in a case where one is charged with the murder of his wife, and where the defense is that the homicide was caused by the accidental discharge of the defendant's pistol, that "if you believe that the defendant killed his wife without intending to kill her, but that it was done in the commission of an unlawful act, which in its consequences naturally tends to destroy a human being, then the offense would be murder."

[Ed. Note.—For other cases, see Homicide, Cent. Dig. §§ 24-31; Dec. Dig. § 18.*]

5. Sufficiency of Evidence.

The evidence supported the verdict.

(Additional Syllabus by Editorial Staff.)

6. Homicide (§§ 218, 203, 221*)—Dying Declarations—Instructions—Sufficiency.

A charge that it is for the court in the first instance to determine whether the preliminary proof is sufficient to admit dying declarations, but that this rule is not binding on the jury, but the jurors must be satisfied that the statements were actually made by deceased, that she made them when she was in the article of death, and was conscious of her condition, that it is not necessary that the person whose statement is sought to be introduced should express herself as believing she is in a living condition, that the dying declarations made by any person in the article of death, who is conscious of her condition, as to the cause of her death and the person who killed her, are admissible, that the declarations stand on the same plane of solemnity as statements made under oath, and that great caution is necessary in the use of dying declarations, was not erroneous.

[Ed. Note.—For other cases, see Homicide, Cent. Dig. §§ 458, 459, 430-437, 463, 464; Dec. Dig. §§ 218, 203, 221.*]

7. Criminal Law (§§ 763, 764*)—Trial—Instructions—Weight of Evidence.

An instruction, telling the jury that dying declarations stand on the same place as testimony given under oath, is not objectionable as dealing with the weight of the testimony.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 1731-1748, 1752; Dec. Dig. §§ 763, 764.*]

8. Homicide (§ 203*) — Evidence— Dying Declarations — Sense of Impending Death.

To render dying declarations admissible in evidence, it is not necessary to show that the declarant said affirmatively that she was in a dying condition, or used words of similar import; it being sufficient if she was in fact in a dying condition and the circumstances such

as to indicate that she knew tits.

[Ed. Note.—For other cases, see Homicide, Cent. Dig. §§ 430-437; Dec. Dig. § 203.*]

9. Homicide (§ 203*)—Instructions—Dying

Declarations.

In an instruction on dying declarations, it is not error to tell the jury that consciousness of the declarant's condition may be inferred from the nature of her wound or other circumstances.

[Ed. Note.—For other cases, see Homicide, Cent. Dig. §§ 430-^37; Dec. Dig. § 203.*]

Error from Superior Court, Fike County; R. T. Daniel, Judge.

Virge Josey was convicted of murder, and brings error. Affirmed.

E. C. Armisted, for plaintiff in error.

J. W. Wise, Sol. Gen., and T. S. Felder, Atty. Gen., for the State.

HILL, J. [1] 1. Virge Josey was indicted for the murder of his wife, and found guilty by the jury trying him, with the recommendation that he be imprisoned in the penitentiary for life. A motion for a new trial having been overruled by the court, he brings his writ of error here for review. The fourth, fifth, sixth, and seventh grounds of the motion will be considered together, as they involve the same question, namely, the admission by the court of the testimony of certain witnesses tending to show acts of ill treatment and cruelty on the part of the husband toward his wife at different times previous to the homicide, covering a period of about two years, and extending nearly to the time of the homicide; the purpose of the evidence being to show malice and motive, and to rebut the presumed improbability of a husband murdering his wife. It is insisted on the part of the plaintiff in error that this testimony should have been excluded, on the ground that it was not connected with the tragedy. We do not think there is merit in these grounds of the motion for a new trial; nor did the court err in admitting the evidence. This court has repeatedly held that, "when a husband is on trial for the alleged murder of his wife, evidence tending to show a long course of ill treatment and cruelty on his part toward her, continuing until shortly before the homicide, is admissible. Such evidence tends to show malice and motive, and to rebut the presumed improbability of a husband murdering his wife." Roberts v. State, 123 Ga. 146(5), and cases cited on page 157, 51 S. E. 374; Campbell v. State, 123 Ga. 533 (2), 51 S. E. 644; Green v. State, 125 Ga. 742 (3), 54 S. E. 724.

2. Objection is made to the charge of the court, as follows: "In regard to dying declarations I charge you this: You are instructed, gentlemen, that it is for the court in the first instance to determine whether the preliminary proof is sufficient to admit dying declarations; but this rule is not bind-ing upon you, for you must be satisfied that such statements were actually made by the deceased, and that she made them when she was in the article of death, and was conscious of her condition at the time of making such declarations, if they were made. It is not necessary that the person whose statement is sought to be introduced should express herself as believing she is in a dying condition. Consciousness of her condition may be inferred from the nature of the wound, or other circumstances. Dying declarations, made by any person in the article of death, who is conscious of her condition, as to the cause of her death and the person who killed her, are admissible in evidence in the prosecution of the homicide. The admission of such statements is founded on the necessity of the case, and the reason is that, being made in view of impending death and judgment, when the hope of life is extinct, and when the retributions of eternity are at hand, they stand upon the same plane of solemnity as statements made under oath. 1 charge you, gentlemen, that great caution is necessary in the use of dying declarations. The court has admitted this evidence, leaving you to determine whether the statements were or were not made by the deceased, and also whether the statements, if made by her, if she was at the time in the article of death, and whether she was conscious of her condition. If you believe the deceased made the statements, and you believe that she was at the time in the article of death, in a dying condition, and also believe she was conscious of her condition, then you should consider the statements along with all other evidence in the case. If you do not believe that she was in the article of death, in a dying condition, or if you do not believe that she was conscious of her condition, or if you do not believe that she made the statements, you should not consider them at all."

It is contended that the above charge is erroneous: "(a) Because that part of the charge was too general, too restrictive, and too indefinite to guide the minds of the jury as to what weight should be given the statements that were actually proved on the trial of the case. (b) Because the court informed the jury that consciousness of her condition may be inferred from the nature of the wound, or other circumstances. (c) Because there was no evidence to authorize that part of the charge in which the court instructed the jury in the following words: 'The admission of...