Mitchell v. State

• Decision Date: 23 October 1883
• Citation: 71 Ga. 128
• Parties: MITCHELL v. THE STATE OF GEORGIA.
• Court: Georgia Supreme Court

71 Ga. 128

MITCHELL v. THE STATE OF GEORGIA.

Supreme Court of Georgia.

October 23, 1883

September Term, 1883.

[Blandford Justice, being disqualified, did not preside in this case.]

1. This court will not interfere with the verdict of a jury where there is evidence to sustain it, and the judge who tried the case is satisfied with it, unless there has been some misapprehension of their duty made manifest, or it appears that some right has been denied the defendant, or unless improper bias or prejudice on their part is evident. But the strength of the present case is much weakened by the character of the evidence, and it appears that this trial has not developed the whole truth.

2. Dying declarations constitute one of the exceptions to the rule which rejects hearsay evidence. Their admission is founded on the necessity of the case and the reason that being made in view of impending death and judgment, when the hope of life is extinct and the retributions of eternity are at hand, they stand upon the same plane of solemnity as statements made under oath. They are admissible only when made by a person in the article of death who is conscious of his condition, and then only in cases of prosecutions for homicide, and for the sole purpose of showing the cause of death and the person who committed the act; and great caution is necessary, not only in the admission, but in the use of this kind of testimony.

( a. ) The case at bar falls short of the requirements necessary to make dying declarations available.

( b. ) The court must judge of the preliminary evidence in the first instance. If he deems it prima facie sufficient, he should admit the declarations instructing the jury afterwards to pass finally for themselves on the question, whether or not the declarations were conscious utterances in the apprehension and immediate prospect of death.

3. That prior to a homicide two messages were brought by little boys to the deceased, purporting to come from the defendant, to the effect that the deceased should come to the place of defendant, that " they were ready for him," was inadmissible, the messengers not being introduced and no effort being made to find them.

( a. ) Statements and conversations between others, in defendant's absence, distinct from any conversations shown by the defence, and of which the defendant was not notified, were inadmissible; statements concocted in advance as part of a projected scheme of crime cannot be introduced by the party making them, in his own behalf, though they may be proved by the opposite party to show premeditation and preparation.

( b. ) Where a witness reached the scene of a conflict in a very few minutes after the deceased fell, and assisted in bearing him away, and when they had gone about thirty or forty steps the wounded man asked the witness, " What did you shoot me for?" — the whole transaction not occupying more than five minutes— such facts were a part of the res gestæ .

( c. ) The practice prescribing the order in which testimony shall be introduced is for the convenience of the court, and may be modified as he deems proper for the advancement of the ends of justice.

4. To lay the foundation for admitting the testimony of a deceased witness, it must have been given on a former or trial upon substantially the same issues, and between substantially the same parties; then any one who heard it and who professes to remember the substance of the entire testimony as to the particular matter about which he was called to testify, is a competent witness for this purpose.

( a. ) A substantial and not a literal compliance with these conditions is all that is required. Where a witness testified that he remembered " the substance of the material part of her (the deceased witness's) testimony affecting the case, but couldn't say that he remembered the entire substance of all she said," he was a competent witness, and his testimony was admissible.

( b. ) At most, the competency of the witness was only doubtful, and in such cases the well established practice is to admit the evidence, and allow the jury to pass upon the circumstances affecting its competency in determining its credibility and weight.

5. Where the deceased and other members of his family had acted in concert in a series of aggressions extending through several days, and acts and threats on their part had been communicated to the prisoner and done in his presence, other like acts and threats on the part of one of the persons so acting with the deceased were admissible to explain the prisoner's conduct and account for the motive with which he ultimately acted, although these special acts and declarations were not communicated to the prisoner and were not in the presence of the deceased.

6. A party has a right to make a thorough and sifting cross examination of the witnesses called against him. Wherever the purpose is to impeach or discredit the witness, great latitude should be allowed by the court in cross examinations. Such appears to have been the purpose here, but to have avowed it would have defeated the object in view.

7. The court should have charged the jury as requested, that " if they had a reasonable doubt as to whether Ben Mitchell (the defendant) acted, when he shot, under circumstances calculated to excite the fears of a reasonable man, or whether he felt at the time he shot, and had reason to feel from the circumstances, that it was necessary to shoot to save his own life, limb or person, then he was justifiable."

Criminal Law. Evidence. Witness. Dying Declarations. Murder. Homicide. Res Gestæ . Practice in Supreme Court. Before Judge WILLIS. muscogee Superior Court. May Term, 1883.

Ben Mitchell and Holland Mitchell (his brother) were jointly indicted for the murder of Jesse B. Wright. Ben Mitchell was tried separately. It was not denied that the defendant killed Wright with a pistol; but he insisted that he did so in self-defence, or, at least, that he acted under reasonable fears. It is unnecessary to detail this voluminous and conflicting evidence. To the report contained in the decision it is only necessary to add the following: A difficulty had been imminent for several days before the homicide, growing out of the whipping of Wright's little boy by Mitchell's son, under the direction of the defendant (he asserting that young Wright and others were in his watermelon patch, and he directed his son to thrash them out of it). The two, Wrights, Jesse and Lovick, who were brothers, seemed to resent deeply the affront which they considered had been put upon them. Each side insisted that the other brought on the final catastrophe. It occurred on the sidewalk near the house of Holland Mitchell; defendant also lived not far away. Both Holland Mitchell and Lovick Wright were near by when the homicide occurred. On the morning of the killing, defendant went to a magistrate's office, in the city of Columbus and asked for a peace warrant against the Wrights. At the time he had a shot-gun, and on the same day a pistol. The magistrate advised a settlement of the matter. Holland Mitchell and a son of his came in and said the former had seen Lovick Wright, and the matter was all settled. Defendant then proposed to leave his gun at the magistrate's office, but as the latter declined to be responsible for it defendant gave it to the son of Holland Mitchell. This was between nine and ten o'clock in the morning; the homicide occurred between twelve and one o'clock. The other testimony is sufficiently set out in the decision for an understanding of the point ruled. Many witnesses were introduced, but most of them either did not see the difficulty at all, or only testified to collateral facts, or were some distance away from the scene of the homicide; and the accounts of the transaction were somewhat fragmentary. Dying declarations were relied on, as stated in the decision. Defendant stated and insisted that Wright fired the first shot, and that he himself shot in self-defence. He was wounded in the hand.

The jury found the defendant guilty, and recommended that he be imprisoned for life. He moved for a new trial on the following grounds:

(1) to (3.) Because the verdict was contrary to law and evidence and against the weight of evidence.

(4.) Because the court refused to admit in evidence what the prisoner said to the sheriff, a witness, at 12:45 P. M., as recited in his testimony. [The sheriff testified that about 12:45 P.M.— after the homicide— defendant came and surrendered himself and gave up his pistol. He was then asked what defendant said, but this was ruled out.]

(5), (6.) Because the court erred in admitting the declarations made by deceased, as testified by witness F. M. Johnston, as dying declarations,— the objection being because deceased was not conscious of his condition when they were made, and because they were not made as to the cause of his death, nor as to the person who killed him.

(7.) Because the court erred in admitting said declarations, in view of the whole testimony touching the same in this case, under section 3781 of the new Code.

(8.) Because the court erred in admitting the testimony of witness for the state, Van Cook, as to two messages sent to the house of the mother of deceased on Sunday morning before the homicide,— because hearsay, and because it would allow parties to manufacture testimony. [The homicide occurred on Monday. The witness testified that on the preceding Sunday two messages came to the house of the mother of Jesse Wright where the witness, the deceased and his brothers and some others were. The bearers of these messages were little boys, unknown to the witness. They purported to come from Ben Mitchell. The first message was " to come up there; they were...