Lyens v. State

• Decision Date: 22 December 1909
• Citation: 66 S.E. 792,133 Ga. 587
• Parties: LYENS et al. v. STATE.
• Court: Georgia Supreme Court

66 S.E. 792

133 Ga. 587

LYENS et al. v. STATE.

Supreme Court of Georgia

December 22, 1909

Syllabus by the Court.

While one is attempting, without provocation, to commit a felony on another, the latter will not be justified in killing the former, unless there is a necessity to do so to prevent the commission of such felony, or the circumstances are such as to excite the fears of a reasonable man that such necessity exists, and the slayer really acts under the influence of such fears in killing his assailant.

The court charged the jury "that direct and positive evidence is rather to be believed than negative evidence where the witnesses are of equal credibility, and that a witness who testifies positively to the occurrence of a fact is rather to be believed than many witnesses who testify that they did not see the occurrence, provided they are of equal credibility, and provided, further, that they all have equal opportunity for knowing the facts about which they testify." This charge was not subject to the objection that the jury was liable to understand therefrom that the witness swearing positively was not rather to be believed than the witnesses swearing negatively, if the former had better opportunity than the latter for knowing the facts about which the testimony was given.

In the trial of a murder case, if at the time of making declarations the condition of the wounded party making them, the nature of his wounds, the length of time after making the declarations before he expired, and all the circumstances, make a prima facie case that he was in the article of death and conscious of his condition when he made the declarations, such declarations should be admitted in evidence by the court under proper instructions to the jury.

Where one contributes to a fund to be used in employing an attorney to aid the Solicitor General in the prosecution of a particular person for an alleged offense with which he is charged, and the attorney does not render such aid upon the trial of the case, the person so contributing is to be considered as a voluntary prosecutor, and one who is related within the fourth degree to such volunteer prosecutor is not competent to sit as a juror on such trial.

Evidence that a person who made a declaration, after being shot, and shortly before his death, stated that he would "love to live to prosecute these men," and that he offered a prayer, was admissible as tending to show that at the time he made his declaration he was in the article of death and conscious of his condition.

Error from Superior Court, Wayne County; T. A. Parker, Judge.

W. B Lyens and others were convicted of murder, and bring error. Reversed.

Beck J., dissenting.

W. W. Bennett, J. R. Thomas, D. M. Parker, and Twiggs & Gazan, for plaintiffs in error.

Wilson, Bennett & Lambdin, Jos. H. Morris, R. L. Bennett, R. E. Dart, J. H. Thomas, Sol. Gen., and Jno. C. Hart, Atty. Gen., for the State.

HOLDEN J.

The defendants were indicted for the murder of Fleming Smith, and upon their trial the jury rendered a verdict of guilty, with a recommendation to mercy. To the order of the court refusing a new trial they excepted.

Fleming Smith, the deceased, was a clerk in the drug store of the Jesup Drug Company, and it was in this store that the shooting occurred, on the night of December 12, 1908, which resulted in his death. A witness for the state, J. J. Hill, testified that, on the morning of the day on which the killing occurred, W. B. Lyens, one of the defendants, stated to him: "I cursed him [Fleming Smith] out yesterday evening and last night, and I am going to see him again. *** I said enough to him yesterday evening to make a man kill another." A part of the testimony of W. R. Williams, a witness for the state, was substantially as follows: He saw W. B. Lyens between 8 and 9 o'clock on the morning of the day the deceased was killed. Lyens seemed to be worried and somewhat excited at the time, and stated "that Mr. Smith had been talking about him, but that he knew that Mr. Smith was not able to fight him, but said that Smith could fix himself so that he would be as big a man as he was, and said he was willing to fight him anyway." The witness was in the drug store when the defendants walked in with their hands in each pocket of their overcoats. "When the defendants walked in, Mr. Smith said, 'Sheriff, is there something you will have?' Mr. Lyens said, 'No, there is nothing I will have,' and stood there a second or two, and then said, 'What is in these boxes in the showcase?' When he said that I turned around and walked out. I do not know what Mr. Smith's answer was. At that time, however, he was wiping his hands with a rag, as he had been picking some ice out of the soda fount. I reckon the defendants had been in the store some 10 or 15 seconds before I went out, and they were leaning up against the showcase on the lefthand side of the store as you go in. Each one of the defendants had on an overcoat. When the shooting commenced, I had gotten about 10 feet inside of Kicklighter's store The first shooting I heard went like a pistol, and then the shooting kept up a little piece, and then there was a slack in it, and about that time I thought I would go around and peep in there during this lull. I mean by lull that the firing stopped for a second or two, and this is what I called the lull. I did not hear the shotgun fire before the pistols fired. I heard the shotgun afterwards, the last of the firing. These pistol shots, after they commenced firing, come in just as rapid succession as you would hear if a package of firecrackers were set off. There must have been at least 20 shots fired. Towards the last of the shooting I heard a loud report."

Mitch Thomas, a witness for the state, testified in part as follows: "The first thing I saw the defendants do after the shooting started was to advance towards the prescription case while they were shooting. Then I run a few jumps and stopped, and then saw Mr. Smith about the center of the prescription case. When I saw him he was kinder staggering or making towards that opening that comes this way towards the side door of the drug store. Mr. Lyens then caught him by the shoulders just as he entered the opening there between the prescription case and the end of the counter on the left-hand side of the door, and they had a kinder little struggle, and Mr. W. B. Lyens jerked Mr. Smith down, and then Archie Lyens run up to him and jabbed his pistol to him [Smith] and shot him. I think that Archie Lyens then shot him [Smith] twice, and Mr. Smith went to the floor, and I saw W. B. Lyens get the gun. Mr. Lyens then got the gun, and hit Mr. Smith on the head with the breech of it, and then turned and fired the gun, and come on to Mr. Smith overhanded. When Lyens fired the gun, he fired it in the front of the building. He fired the gun once, and then the other report was just after that like this [indicating by popping fingers in quick succession]. After I went in the building, I heard W. B. Lyens say, 'We have got him, God damn him; he shot at me first.' *** Before these last two shots which I have described as being fired from a shotgun, I heard no shots except pistol shots. When I went in the store, I told Lyens not to shoot Smith any more, and Smith said that Lyens had killed him, and that he [Lyens] had not given him [Smith] a chance for his life, but that he had killed him, and that it was not necessary for him [Lyens] to shoot him [Smith] any more."

There was evidence that the deceased lived only a short while after the shooting occurred, and said, after he was shot, that he did not shoot at the defendants at all, and that W. B. Lyens held him, while Archie Lyens did the last shooting. There was also evidence on the part of the state that there were powder burns on the clothes of the deceased, and powder burns in the flesh where the wound in the side was inflicted, and that this wound in the side of the deceased caused his death.

There was testimony on the part of the defendants that the deceased, about a month before the homicide, stated that he "was going to kill Sheriff Lyens if it was five years." Moses Brinson, a witness for the defendants, testified, in part, as follows: "After Sheriff Lyens and his son entered the store, they went to the opposite side of the store and leaned up against the showcase and stood with their backs to the counter. When the defendants entered the store, Mr. Smith said, 'Is there something, Sheriff?' and Mr. Lyens said, 'No, nothing just now.' Shortly after that Mr. Lyens said, 'Fleming, what is in those boxes?' and Mr. Smith said, 'Candy, Sheriff.' I discovered nothing in the tone of voice of either that would indicate that either was mad or excited; but their voices seemed a little strained. Of course it might have been imagination on my part; but it seemed that Mr. Lyens was talking in a strained voice, and that Mr. Smith was talking in a strained voice. All this time Mr. Smith was shaving off some ice, and he put the ice down, and wiped his hands, and went in the back part of the store, and come out with a shotgun across his shoulder. At the time he come out from behind the prescription case, he said, 'Mr. Sheriff, did you come in to see me?' and then the gun went off. I mean the gun that Fleming Smith held is the one that went off in the direction of the front door. Mr. Lyens was sorter at right angles with Mr. Smith, and sorter ducked down just as the gun fired. *** I left the drug store while the shooting was going on. When the shooting began, and after it began, I hid behind the soda fount, and I looked up one time, and the defendants were going back this way--rushing back towards the end of the store."

The defendant W. B. Lyens, in his...