Nathan v. State

• Citation: 61 S.E. 994,131 Ga. 48
• Parties: NATHAN v. STATE.
• Decision Date: 15 July 1908
• Court: Supreme Court of Georgia

61 S.E. 994

131 Ga. 48

NATHAN v. STATE.

Supreme Court of Georgia

July 15, 1908

Syllabus by the Court.

The phase of involuntary manslaughter in the commission of a lawful act without due caution and circumspection was presented by the statement of the accused, when considered in connection with the surroundings of the homicide.

[Ed Note.-For cases in point, see Cent. Dig. vol. 26, Homicide, § 97.]

The instructions as to the implication of malice arising from proof of a homicide, when there is a deliberate intention unlawfully to take human life, and that malice may sometimes be implied even in the absence of satisfactory proof of motive for the homicide, were not open to the criticisms made thereon.

[Ed Note.-For cases in point, see Cent. Dig. vol. 26, Homicide, § 588.]

Though a party may, under Civ. Code 1895, § 5290, impeach his own witness, if he can show to the court that he has been entrapped by the witness by a previous contradictory statement, the rule does not apply where the testimony of the witness is not prejudicial to the party calling him. Rickerson v. State, 106 Ga. 391, 33 S.E. 639; 7 Enc.Ev. 31 (b), and cases cited.

[Ed Note.-For cases in point, see Cent. Dig. vol. 50, Witnesses § 1214.]

The verdict was very strongly supported by the evidence, and the court did not err in refusing the grant of a new trial.

[Ed Note.-For cases in point, see Cent. Dig. vol. 26, Homicide, §§ 523-532.]

Error from Superior Court, Morgan County; H. G. Lewis, Judge.

John Nathan, alias Bill Arp, was convicted of murder, and brings error. Affirmed.

Though a party may under Civ.Code, 1895, § 5290, impeach his own witness, if he can show that he has been entrapped by the witness by a previous contradictory statement, the rule does not apply where the testimony of the witness is not prejudicial to the party calling him.

The accused was convicted of murder for the killing of a woman Sweetie Harris. His motion for a new trial being overruled, he excepted. According to the testimony submitted in behalf of the state, the accused, who was a mere acquaintance of the deceased, was standing very near her while she was dancing with another. Cursing her, he said: "I told you not to dance. I told you I would shoot you"-and immediately shot and killed her with a pistol. He at once fled, and some four years thereafter was arrested in another county, going under an assumed name. Defendant's statement to the jury was as follows: "I didn't have my pistol all; and I said: 'John, loan me your gun.' And he said: 'I am not going to loan it to you.' And I said: 'I am not going to do anything to you'-and I unbreeched it and went to fix it back, and it went off and shot her. And, when I shot her, I went out of the house and never said anything at all when the pistol went off, and did not say anything at all when I shot her. I shot her accidentally. I did not intend to shoot her at all." Defendant introduced witnesses who testified that they were familiar with the kind of pistol with which the deceased was shot by the accused, and that pistols of this make were liable to fire from being breeched or unbreeched. The accused introduced one Gable as a witness, who testified that he was standing near the accused when the pistol fired; that he knew nothing about the shooting, as it was done so quickly; that he did not know who owned the pistol that was fired; that he was not looking at the accused when the pistol was fired, and did not know in what position it was held; that deceased was dancing when she was shot; that a good many people were present; that the accused was not paying the deceased any special attention, so far as the witness knew; and that he knew of no quarrel or unpleasantness between them before the shooting. Counsel for the accused stated to the court that they had been entrapped by this witness, and requested the court to permit them, for the purpose of laying the foundation for his impeachment by proof of contradictory statements, to ask the witness if he did not state to them, in their office, on the day before the trial, that the shooting occurred just as the accused, in his statement...