McCray v. State
| Decision Date | 27 April 1910 |
| Citation | 68 S.E. 62,134 Ga. 416 |
| Parties | McCRAY v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
A juror upon the panel put upon the accused in a murder case, whose niece was the first wife of the father of the deceased, but who was not related in any way to the mother of the deceased the second wife of his father, was not disqualified, by reason of relationship, to sit as a juror upon the trial of the case.
A ground of a motion for a new trial, assigning error upon the admission of certain quoted testimony over the objection of the movant, without stating what the objection was upon which the trial judge ruled, is so incomplete that this court cannot pass upon it, although it may appear that a valid objection might have been made to such testimony.
The rule of evidence requiring the production of the best evidence obtainable is not violated by permitting the genuineness of a signature to an unattested instrument to be proved by a witness who is familiar with the handwriting of the person by whom it purports to have been made, without introducing the testimony of such person, though he may be easily accessible at the time such proof of the signature is offered.
"The opinion of a witness is not admissible in evidence when all the facts and circumstances are capable of being clearly detailed and described so that the jurors may be able to form correct conclusions therefrom."
Testimony as to a statement made by the accused a few days before the homicide, which tended in some degree to illustrate the state of his feelings towards the deceased at the time of the homicide, and to throw some light upon the question of the motive which actuated him when the killing occurred, was not inadmissible because such statement had not been communicated to the deceased.
It is not permissible for a witness who testifies to a conversation between himself and another to state to whom such other person referred when in such conversation he used the pronoun "them"; the opinion of the witness on this question not being competent evidence.
Declarations made by the deceased in reference to his motive in seeking to find the accused though made while on his way to the scene of the homicide in quest of the accused, were not admissible over the objection of the accused, for the purpose of showing that the intention of the declarant in seeking the accused was peaceful and lawful.
Testimony which a witness has given, without objection on his part cannot be excluded on motion of a party to the case, on the ground that the personal privilege of the witness was violated when such testimony was elicited from him.
It was not error, in view of the evidence in this case, to admit in evidence, to be considered solely on the question as to the credibility of a witness testifying in behalf of the accused on trial, an indictment against him and such witness, charging them jointly with the offense of assault with intent to murder, alleged to have been committed upon a named person, who, the evidence in the case on trial showed, accompanied the deceased at the time he was killed, and was assaulted as he was leaving the scene of the homicide.
Under the evidence in the case, the law of voluntary manslaughter was involved therein.
Relatively to the plea of self-defense alone, in a murder case, an instruction that it was important for the jury to determine "whether the offense, if any, the defendant acted in fear of was a felony or not," was not erroneous. But such instruction, if applied to the defense that the homicide was committed in defense of the habitation of the accused against the deceased and another, who were manifestly intending and endeavoring, in a riotous and tumultuous manner, to enter the same for the purpose of assaulting or offering personal violence to some one dwelling or being therein, would be erroneous. The court should have made it clear to the jury that this instruction was intended to apply only to the defense first above indicated, and did not apply to the last-mentioned defense.
The instructions which were excepted to upon the ground that they deprived the accused of the benefit of his defense which is last mentioned in the next preceding headnote, and the instructions which were excepted to upon the ground that they placed improper limitations or restrictions upon this defense were not subject to the assignments of error made upon them, as in none of these instructions was the court dealing with the law applicable to the homicide in defense of one's habitation, and the court did elsewhere in the charge deal with this defense of the accused, and no complaint is made that the instructions on this subject were erroneous or were not full and explicit.
The law of justifiable homicide as found in Pen. Code 1895, §§ 70, 71, is not qualified or limited by the law upon the separate branch of the same subject laid down in section 73; and it is error for the court, upon the trial of one indicted for murder, to so charge the jury as to confuse the defense of justifiable homicide under the fears of a reasonable man, based upon the provisions of the two related sections first mentioned, with the defense of absolute necessity to kill, in order to save one's own life, which is contained in section 73.
(a) Under the evidence contained in the record, the law laid down in section 73 was not involved in this case.
(Additional Syllabus by Editorial Staff.)
One whose name appears upon a warrant as prosecutor, and who, though not named as such in the warrant, is to all intents and purposes a prosecutor in the case in which the warrant is issued, is not a proper person to execute it.
If a private person relies upon his having in his possession a warrant, and upon being deputized to execute it, to justify his making an arrest, he must inform the person sought to be arrested that he is acting by virtue of such warrant.
Error from Superior Court, Bryan County; P. E. Seabrook, Judge.
Brunswick McCray was convicted of murder, and brings error. Reversed.
Brunswick McCray was tried under an indictment charging him with the offense of murder; the person alleged to have been killed by him being Zenas S. Warnell. The jury found him guilty of the offense charged in the indictment, whereupon he made a motion for a new trial, which was overruled, and he excepted. According to the evidence contained in the record, Zenas S Warnell, the deceased, and his brother, D. B. Warnell, were engaged in operating a turpentine farm.J. B. Boatright was employed by them as "woodsman," and boarded with Zenas Warnell. Brunswick McCray, the accused, had been for several years prior to the homicide employed as a laborer upon the turpentine farm by the Warnells. On several occasions he had left their premises, or, in the language of Boatright, who was the main witness for the state, had "run off," and the deceased "had gone after him." Two or three weeks prior to the homicide he again left the premises of the Warnells, and on this occasion he went to the turpentine farm of J. H. Blitch, 14 or more miles from that of the Warnells. A few days prior to the homicide, he returned to the Warnell place (where the evidence indicates his wife had still remained) at night, and, upon being seen there the next morning by D. B. Warnell, was by him furnished with some rations from the commissary, and was sent in a wagon in charge of Barker, an employé of the Warnells, to the woods to work. He apparently did not want to go to the woods to work, and said to Barker: He also said: "The man who goes after me, it will be judgment with them." Shortly after this conversation he did leave the Warnell place. Barker testified: "He [McCray] remained on Mr. Warnell's place only that night." One night after he left Z. S. Warnell went to the bedside of Boatright, "woke him up," and asked him to go with him "for Brunswick." Boatright testified that Warnell then told him that he had a warrant, but Another witness for the state, who lived on the Blitch place, testified that, after Warnell and Boatright got to that place, Warnell told the witness that he had come to get Brunswick McCray to go back to work for him, and did not say that he had come to arrest McCray or that he had a warrant for him. Z. S. Warnell and Boatright, the former armed with a repeating rifle and the latter with a revolver, rode in a buggy to the Blitch place, and to a two-room house thereon, which was the home of Webster McKinney, a brother-in-law of McCray's wife, and his wife and four children. Brunswick McCray and his wife were in this house at the time; the wife having joined the husband there during the night. It was between "daylight and sunup" when Warnell and Boatright got there. Warnell hailed several times at the gate in front of the house without getting any response. He and Boatright then went to the door, where Warnell again hailed several times. Finally, Webster McKinney "poked his head out of the door." Warnell asked him if "Brunswick McCray was there," to which McKinney responded, "Yes; he is here." Then, according to Boatright's version of what occurred, Warnell walked in the house, but, when Boatright started to enter also, McKinney tried to close the door on him and keep him out, but he "pushed on in there anyhow, and got in the house." According to the...
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