May v. State

• Decision Date: 20 February 1893
• Citation: 17 S.E. 108,90 Ga. 793
• Parties: MAY v. STATE.
• Court: Georgia Supreme Court

17 S.E. 108

90 Ga. 793

MAY v. STATE.

Supreme Court of Georgia

February 20, 1893

Syllabus by the Court.

1. Upon a trial for murder, the evidence being conflicting, and leaving it uncertain which of the parties brought on the final conflict, there being some evidence tending to show that both were armed, that the slayer was retiring, and that the man slain advanced upon him and fired the first shot evidence of an uncommunicated threat by the deceased to take the life of the accused was admissible and material, and its rejection is cause for a new trial.

2. Counsel for the accused, upon the sequestration of witnesses being ordered, having requested the court to allow one of the witnesses, a brother of the accused, to remain in the court room to assist in the conduct of the defense, to which the solicitor general objected, and the court having permitted the witness to remain upon the express announcement by counsel for the accused that they would not swear this witness in the case, the court ought not, because of these facts, to have subsequently refused to allow his introduction for the purpose of impeaching a witness for the state. The promise implied in the announcement should not have been made, and was not obligatory.

3. Where a bill of exceptions recites that a motion for a new trial has been made, and the only error assigned is "the refusal of the court to sustain the motion, and grant a new trial on each of said grounds, to wit," (the words quoted being followed by what purport to have been the several grounds of the motion, eight in number,) and the bill of exceptions specifies as material the motion for a new trial, but in the transcript thereof only the first four of these grounds appear, the four remaining alleged grounds of the motion are not properly before this court for review.

Error from superior court, Telfair county; D. M. Roberts, Judge.

John May was convicted of murder, and brings error. Reversed.

Chas D. Loud, B. M. Frizzell, R. R. Norman, and Harrison & Peeples, for plaintiff in error.

Tom Eason, Sol. Gen., for the State.

LUMPKIN J.

1. As a general rule, upon the trial of a murder case, evidence of threats previously made by the deceased against the accused but not communicated to the latter, is inadmissible; but this rule is by no means invariable. When the evidence leaves it doubtful as to which of the parties began the mortal combat and there is testimony tending to show that the slayer killed his adversary in self-defense, evidence of this character may be received to show the state of mind or feeling on the part of the deceased, and thus illustrate his conduct, and throw light upon his intention and purpose at the time of the fatal rencounter. This is the substance of what was ruled in the case of Keener v. State, 18 Ga. 194, so often cited, and now so familiar to the profession. In Hoye v. State, 39 Ga. 718, Brown, C.J., while intimating some disapprobation of the ruling in Keener's Case, states that the court expressly declined to overrule that decision; and in Peterson v. State, 50 Ga. 142, McCay, J., recognizes the propriety of admitting the uncommunicated threats in the Keener Case, although he says the court does not feel authorized to go any further in that direction. In Vann v. State, 83 Ga. 44, 9 S.E. 945, this court held that evidence as to threats made by the deceased, and not communicated to the accused, was properly rejected. Justice Simmons, who delivered the opinion, does not comment upon the facts of the case in connection with this ruling, but merely cites the Cases of Hoye and Peterson, supra, and also Lingo v. State, 29 Ga. 470. An examination of the facts of the Vann Case will show, however, that Vann was the aggressor from the very beginning of the difficulty which resulted in the death of White, the man he murdered, and that the deceased was shot down and killed when he was actually walking away from the slayer, and making no attempt of any kind whatever to injure him; and in each of the cases there cited on this question it will be seen there was no overt act or attempted violence on the part of the deceased towards the accused. These cases, therefore, present no obstacle to holding that uncommunicated threats may be properly received in cases of an entirely different character, such as the one now under consideration. This subject was also dealt with by Chief Justice Bleckley in Vaughn v. State, 88 Ga. 731, 16 S.E. 64, where a previous uncommunicated threat was held inadmissible because the evidence was positive that the accused fired the first shot, and was not contradicted otherwise than by his own statement, and there was no evidence that the deceased was armed. See authorities therein cited, upholding the admissibility of uncommunicated threats. In Trice v. State, 89 Ga. 742, 15 S.E. 648, the refusal of the court to permit the introduction of uncommunicated threats by the deceased against the life of the accused was held to be no cause for a new trial, but it appeared in that case that the accused, while armed with a deadly weapon, challenged the deceased to fight in the public road, and slew him as he approached, with an open knife in his hand, before he had come near enough to put the accused in immediate danger, the latter doing nothing to decline the mortal combat. In...