Kalb v. State

• Decision Date: 11 March 1943
• Docket Number: No. 14406.,14406.
• Citation: 25 S.E.2d 24
• Parties: KALB. v. STATE.
• Court: Georgia Supreme Court

25 S.E.2d 24

KALB.

v.STATE.

No. 14406.

Supreme Court of Georgia.

March 11, 1943.

Syllabus by the Court.

1. The judge, after charging the rule as to the degree of mental conviction required where establishment of the defendant's guilt depends solely upon circumstantial evidence, did not err in stating further that "the term 'hypothesis' as used in that connection means such reasonable inferences or such reasonable deductions as an ordinarily prudent man would make in the light of his every day experience or in the light of his knowledge of human conduct and human behavior."

2. Acquiescence or silence, when the circumstances require an answer or denial or other conduct, may amount to an admission. When a statement tending to incriminate a person is made in his presence and he remains silent, the mere fact that he is under arrest or is in custody at thetime will not render evidence of such statement and silence inadmissible as an implied admission, or make it improper to instruct the jury in reference to such evidence.

3. The charge on flight was not unwarranted by the evidence, or otherwise erroneous as insisted.

4. The preliminary evidence was sufficient to establish a prima facie foundation for admission of the testimony as to statements made by the deceased and offered by the State as dying declarations, and the statements shown to have been made were not inadmissible for any reason urged. The mere fact that the declarant lived for about three and a half months after making them was not controlling upon the admissibility of such statements.

5. The charge on the subject of dying declarations was not subject to exception on the ground that it contained an expression of opinion by the trial judge, and was not otherwise erroneous as contended. While the lapse of a long period of time between the making of the declaration and the event of death may within itself constitute some evidence that the declarant had not despaired of recovery, it is nevertheless true, as was seated in the charge, that the actual period of survival after making the declaration is not controlling. If further instructions were desired, they should have been requested.

6. The charge to the effect that if there was a conspiracy between the defendant and another person to rob the deceased, and if during the commission of a robbery any person acting with the defendant in furtherance of such conspiracy killed the deceased, it would be murder, even though there was no original plan or agreement to kill, was a substantially correct statement of law, and was not erroneous as unwarranted by the evidence, or upon the ground that a conspiracy to rob is not a conspiracy to murder.

7. The charge on the right of the jury to recommend the defendant to the mercy of the court if they should find him guilty of murder was not, in any view as to its correctness, harmful to the defendant, since the jury did find him guilty, with such recommendation in their verdict.

8. Under the evidence and the defendant's statement, the charge as to the forms of verdict that the jury would be authorized to return did not contain an expres sion of opinion by the trial judge, and was not otherwise erroneous, as insisted.

9. The complaint that certain testimony was elicited by the trial judge and allowed to remain before the jury does not show error, it not appearing that there was any objection to the testimony or that any ruling or other action was invoked. Nor is there any merit in the contention as to expression of opinion by the trial judge in his interrogation of the witness.

10. The evidence authorized the verdict, and the court did not err in refusing a new trial.

Error from Superior Court, Hall County; T. S. Candler, Judge.

Jesse Kalb was convicted of murder, with recommendation of mercy, and he brings error.

Affirmed.

Joseph G. Collins and Hammond Johnson, both of Gainesville, for plaintiff in error.

G. Fred Kelley, Sol. Gen., of Gainesville, Ellis G. Arnall, Atty. Gen., and A. J. Hartley, Asst. Atty. Gen., for defendant in error.

BELL, Presiding Justice.

Jesse Kalb and Thomas Emmett were jointly indicted for the offense of murder, and on separate trials were convicted of the offense charged. In the case of Emmett the verdict contained no recommendation. On the trial of Kalb the jury recommended mercy. Each defendant moved for a new trial, which the court refused, and the defendant excepted. In the order of their appearance, we have dealt first with the writ of error as brought by Emmett, and we now have for determination the case of Kalb.

While the exceptions were different in most instances, some questions were common to both, and we have studied the cases together, both as to the law and the facts.

The statement made in the Emmett case will illustrate in a general way the nature of both cases so far as the State's contentions were concerned, and will render unnecessary any extended statement in the instant case. See Emmett v. State, Ga. Sup., 25 S.E.2d 9.

The defense made by Kalb, however, was entirely different from that asserted by Emmett, in that he conceded that an unlawful assault was made upon McConnell, and that he himself had a part in it, insisting, however, that in all that he did he was acting under duress exerted by Emmett.

In his statement on the trial he explained how he happened to be traveling with Emmett, and told of their arrival and stay at McConnell's place. He stated that they purchased a pint of whisky from McConnell, and that he later gave them a pint, and that they sat around, drank, and talked. Concerning other matters, including the actual assault, he stated:

"He [Emmett] got in the car, and me and Mr. McConnell pushed it off down the grade, and it cranked up, and he left. Neither one of us expected him to come back; we figured he would head on to Gainesville. Me and Mr. McConnell went down the road towards the edge of river, and we was talking about this big sand-pile down there and about a power line by his barn, and I asked Mr. McConnell about spending the night with him and also staying until I could catch a way back to Atlanta, and he says, 'That is all right; you can stay as long as you want to.' He said, 'I am expecting a man to come by in the morning which is going to Atlanta, ' and says 'I will get you back to Atlanta, you can ride with him.' We came out to his barn and talked about his barn; he had a nice barn there, and we come on by the house up to the wood-pile, and he asked me would I get an arm full of wood to put on the fire, and I told him I would, and I got up an armful of wood, and Mr. McConnell he went on in the house, and I taken the armfull of wood on in, and he wasn't in the room where the fire was when I went in. I put the wood on the fire, and I could hear an argument sounded like somebody arguing. Just over a few steps from the fireplace there was a door went into another room. I never had been in there before until I went in there then. I walked over there and walked into the door, and when I walked into the door I could see him and Emmett. Emmett hit him with the butt of a shotgun; so I went walking on up to Emmett. I thought I would take this gun away from him or get him off of Mr. McConnell, and he hit me across the head with the shotgun and knocked me down on the floor, and there was a few seconds I would say it knocked me addled. When I finally got on my feet the shotgun was lying on the floor, and he had a pistol--this gun here looks like it is the one--pointed at me. He says, 'Take your belt off.' So I did. I was scared-- scared not to, and I took by belt off, and he says, 'Tie the man's feet up.' Mr. McConnell was leant back against a trunk with his feet kinder stuck out. I got down on by knees and started to put the belt around his feet, and the old belt was about half broke into--it was rotten; and when I started to pull it, why then the belt broke, and I reckon Mr. McConnell was knocked unconscious or like myself when I was first knocked down--addled enough to where he got the idea they tied him up. I guess he remembered my tying him up, but he did not realize I was forced at the point of a gun at the back of my head. I got up from there when the belt broke, and he says, 'Get this blanket off of that bed over there, ' and I got the blanket and I was standing pretty close to the door that went out into the hall, and he says, 'Tear me off a strip; and I don't just remember whether I had a knife and was trying to cut or tear it or just what, but I looked around at him and I says, 'What you want to beat this poor old man up for?' I did not know what the reason why he was doing this, and he spoke out something like 'You yellow something, ' and whacked me across the head with a pistol. I fell about halfway out in the hall, and when I came to I was crawling out on the porch. I got up. I don't know just how long I was in that shape, but I would say a few minutes and I come to; when I began to come to where I could realize where I was at and what happened, I raised up and looked across the hill there, and I figured I would go that way across that road and get up on the highway where I could go to somebody's house or something, and about that time he walks--comes out in the hall and grabs me in the pants and marches me down to the car. When he came out in the hall he said, 'You thought you would get away from me, didn't you?' and got me by the pants and took me to the car.

"We got in the car and he let it roll down the bill, and it cranked, and when we got down to the barn and started to turn around and the car choked down. So he made me get out on the side and crawled out behind me, and there was a man we saw that morning had these two mules there. I would say he was unhooking them--had the harness off of them, andhe had them at the barn; and so we walks on up to the barn. Emmett was behind me toting this gun in his hand, and I was scared--he scared this man. I remember him pointing the gun and threatening the...