Nelson v. State

Decision Date15 July 1938
Docket NumberNo. 26809.,26809.
Citation198 S.E. 305,58 Ga.App. 243
PartiesNELSON. v. STATE.
CourtGeorgia Court of Appeals

Syllabus by the Court.

1. "In cases where the deceased was suffering from disease prior to the injury, we think 2 Bishop on Criminal Law (New) § 638(3), lays down the correct rule as follows: 'If the one attacked was enfeebled by disease, and what was done would not have been mortal to a well person, still, whether the assaulting person knew his condition or not, if he did what was mortal to the other the offense is committed.'" Wells v. State, 46 Ga.App. 412, 416, 167 S.E. 790.

2. Where the indictment charged that the defendant "did kill and murder by striking, hitting, beating, and wounding the said Mrs. Harvey Nelson with his fist and with a blunt instrument to the grand jury unknown, which the said Harvey Nelson then and there held and giving to the said Mrs. Harvey Nelson then and there a mortal wound of which mortal wound the said Mrs. Harvey Nelson died, " proof that he assaulted her while she was fatally ill and that such assault hastened her death, does not constitute a fatal variance. Com. v. Fox, 7 Gray, Mass., 585.

3. Where the evidence authorized a finding that the defendant assaulted his wife when she was afflicted with disease, thereby hastening her death, but there is no evidence that it was done in the heat of passion "aroused by a just cause such as would produce the same state of mind on the part of the slayer as would an unjustifiable assault, or attempt to commit a serious personal injury upon him" (Cyrus v. State, 102 Ga. 616, 618, 29 S.E. 917; Fry v. State, 81 Ga. 645, 8 S.E. 308), a verdict finding the defendant guilty of voluntary manslaughter can not be upheld, there being evidence amply authorizing the acquittal of the defendant.

4. In the present case where one of the principal issues was whether or not there was a homicide, or whether the deceased died of natural causes, the trial judge should not assume, in charging the jury, that there was a homicide.

5. The trial judge did not err in failing to charge the jury on the offense of involuntary manslaughter in the commission of a lawful act without due caution and circumspection, there being no evidence to authorize such a charge. The evidence did authorize a charge on the offense of involuntary manslaughter in the commission of an unlawful act, and the judge charged the jury on this offense.

Error from Superior Court, Coffee County; M. D. Dickerson, Judge.

Harvey Nelson was convicted of voluntary manslaughter, and he brings error.

Reversed.

E. O. Blalock, of Waycross, and M. L. Preston, of Douglas, for plaintiff in error.

John S. Gibson, Sol. Gen., of Douglas, for the State.

MacINTYRE, Judge.

Harvey Nelson was indicted for the murder of his wife. He was convicted of voluntary manslaughter and he excepts to the overruling of his motion for new trial as amended. The indictment charged that the defendant "did kill and murder by striking, hitting, beating, and wounding the said Mrs. Harvey Nelson with his fists and with a blunt instrument to the grand jury unknown, which the said Harvey Nelson then and there held and giving to the said Mrs. Harvey Nelson then and there a mortal wound of which mortal wound the said Mrs. Harvey Nelson died." In another count the indictment further charged that he did murder the said Mrs. Harvey Nelson "he then and there being her lawful husband and she the said Mrs. Harvey Nelson being then and there seriously ill and then and there requesting the said Harvey Nelson to get a doctor to treat her, did then and there wilfully fail and refuse to procure the services of a doctor to treat her, from which wilful omission the said Mrs. Harvey Nelson then and there died."

The case made by the State's witnesses may be stated as follows: Mrs. Nelson died on Thursday night, December 10, 1936. On Monday next preceding her death, the defendant had a "faith doctor" to attend her. He found her in bed and upon examination found severe bruises about her body. She also had a black eye. He advised the defendant to call a "medical doctor." On several occasions, ranging in time from one year to a week or so before Mrs. Nelson's death the defendant beat her with his hands and fists and with other instruments unknown. On Saturday night, about midnight, Mrs. Nelson, in company with a girl friend, caught a ride from the filling-station which she and the defendant ran, with two young men, to the adjoining town. The defendant found her shortly after they reached town, and ordered her into his car, and threatened to beat h-- out of her when he got her home. Some several hours later, and about an hour and a half before sunup she appeared at the home of a neighbor with large bruises about her face and body, and blood between her lips. On Wednesday the defendant was advised by a neighbor to get a doctor. On Thursday afternoon, through the efforts of neighbors, a doctor came and examined her. One of the neighbors who had sent for the doctor paid him for his services and had filled and paid for a prescription he gave. Mrs. Nelson stated in the defendant's presence that he had whipped her and bruised her up. The defendant renewed a policy of life insurance on his wife's life the night before her death.

The defendant introduced several witnesses who testified to the fact that Mrs. Nelson drank intoxicating liquors to excess, and that she stayed under their influence most of the time. This evidence was not contradicted by any evidence of the State. Two witnesses for the defendant testified to having seen her up, walking about, on Wednesday before her death on Thursday. The evidence for the State does not make it clear when Mrs. Nelson took to her bed with her last illness. The doctor who attended the deceased and who testified that she died with uremic poisoning (the testimony of this witness is set out in detail hereafter) would not state exactly how long, in his opinion the deceased had been suffering therefrom. Dr. W. A. Sibett was sworn on behalf of the defendant and testified that in May, Mrs. Nelson visited his office with throat trouble; that during his treatment she complained that she was having some trouble with her back; that she thought her kidneys were giving her trouble; that he examined a specimen of her urine and it contained albumen, pus, and other inorganic substances; that she had a chronic kidney condition which was serious; that he referred her to another doctor; that drinking liquor would cause and aggravate her condition. He further testified: "I guess a person suffering from that poisoning in their system, that excitement alone will accelerate the disease. I know so absolutely from a professional standpoint. I think severe beatings would accelerate the disease and cause the poison to spread more rapidly, by getting the blood stream stronger and hotter. I think after it reached a chronic stage those beatings and excitement attendant thereto, would accelerate the death--make the disease kill them quicker. It is true that a beatingof a stronger, husky, brawny, man that wouldn't hurt him much would probably kill a person weakened by poison in their system." Dr. J. W. Wallace, another witness for the defendant, testified that he saw her in the afternoon of the day she died; that he found her in an unconscious condition; that he found bruises on her body; that he, together with Dr. Clark, performed a post mortem examination of her body; that uremic poison caused her death; that whisky would cause this condition; that beating a person on the outer surface of the person would not cause uremic poisoning; that her liver was greatly enlarged about two or three times its normal size; that in hi, opinion she had suffered from liver trouble months, or perhaps years, before her death; that he could not state how long she had had uremic poisoning before he saw her; that he did not think the bruises contributed to her death. On cross-examination he testified: "It is true that if a person is suffering from a bad liver and from uremic poisoning that excitement alone will accelerate that disease. * * * Any excitement, especially when they are diseased that way will make them die quicker; even excitement. And the excitement attending the beatings, and the bruises and scars and contusions on her body will certainly accelerate it some, and make a person die quicker. The bruises --but the excitement is probably more cause. Putting bruises on there during the excitement would cause it. In a small way those acts would contribute to her death; the excitement would. I don't think the bruises would. The excitement came from the beating. A man that is big and strong and young and clear of disease could stand a beating without bad results that would kill a person that was laboring under disease; he could stand more punishment, and not kill him or hurt him seriously, that a person that was weakened that beating would kill. I couldn't tell the full extent of those bruises; only they were just superficial; they had been there, probably, I would say, not...

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6 cases
  • People v. Moss
    • United States
    • Court of Appeal of Michigan — District of US
    • 19 Julio 1976
    ...for the compassing of the death by some other unconnected agency.' Wharton on Homicide, § 28, p. 31, as cited in Nelson v. State, 58 Ga.App. 243, 198 S.E. 305 (1938), states: 'To hold a person criminally responsible for a homicide, his act must have been the proximate cause of the death as ......
  • People v. Robbins
    • United States
    • New York Supreme Court — Appellate Division
    • 13 Noviembre 1981
    ...husband confined his wife, who was both insane and crippled, to an unheated, drafty room where she died of exposure. In Nelson v. State, 58 Ga.App. 243, 198 S.E. 305 the wife was an alcoholic with a chronic kidney disease aggravated by her husband's beatings. After administering a beating, ......
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    • Georgia Supreme Court
    • 26 Septiembre 1940
    ... ... decedent's skull, from which the had been continuously ... confined to bed since the time the injuries had been ... inflicted with a hatchet. Clements v. State, 141 Ga ... 667(1, 4), 669, 81 S.E. 1117, and cit.; Wells v ... State, 46 Ga.App. 412, 417, 167 S.E. 709; Nelson v ... State, 58 Ga.App. 243, 198 S.E. 305; Notes in 51 ... L.R.A.,N.S., 877, 879, and cit.; 26 Am.Jur 189-195 (§§ ... 45-53); 29 C.J. 1077-1083 (§§ 54-58); Bishop's Crim., L., ... 9th Ed., 480-485 (§§ 636-641); Wharton on Homicide, 3d Ed., ... 38, 39 (§ 34). The instructions of the ... ...
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    • 21 Octubre 1979
    ...cause of the condition affording an opportunity for the compassing of the death by some other unconnected agency.' Nelson v. State, 58 Ga.App. 243, 249, 198 S.E. 305, 309." The only case this court has found which imposed liability on the survivor of a drag race solely on the basis of that ......
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