Nunn v. State
| Decision Date | 12 May 1915 |
| Docket Number | 344. |
| Citation | 85 S.E. 346,143 Ga. 451 |
| Parties | NUNN v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Where an issue in a criminal case is whether bullet wounds on the back and in front of the body of the deceased were inflicted by the same or different bullets, it is not error to allow a nonexpert witness, in describing the wounds, to testify that "the shot that entered from the front and went in the back couldn't have possibly been the same shot."
On the trial of one for murder, a declaration by his wife, on being informed by him that he had killed the deceased, that "I begged you never to do that," to which the husband made no response, is admissible in evidence as tending to show malice, under the principle that silence, when the circumstances require an answer or denial, may amount to an admission.
An instruction that, if the defendant unlawfully and with the intent to take the life of the decedent slew him under circumstances which excluded mitigation or justification, he would be guilty of murder will not require a new trial on the ground that such instruction excluded malice as an essential element in the crime of murder, where the court in immediate context had defined murder and malice in the language of the Code.
Where the court charges the law of voluntary manslaughter, an omission to state affirmatively that the jury are the judges of "cooling time" will not require a new trial.
The court read to the jury the clause in Pen. Code 1910, § 65 that in all cases of voluntary manslaughter there must be some actual assault upon the person killing, or an attempt by the person killed to commit a serious personal injury on the person killing, or other equivalent circumstances to justify the excitement of passion, etc. He followed it up with an instruction that if the jury should find that "the killing was unlawful and brought about by reason of an endeavor on the part of the deceased to commit a serious personal injury upon the person of the accused, or you find there were other equivalent circumstances sufficient to justify the excitement of passion and to exclude all idea of deliberation and malice, either express or implied, * * * you will be authorized to find the defendant guilty of voluntary manslaughter." This charge will not require a new trial under the facts of the case on the ground that the instruction omitted a reference to an "actual assault," as furnishing a basis for the reduction of an unlawful homicide from murder to manslaughter.
Error from Superior Court, Toombs County; B. T. Rawlings, Judge.
Joe Nunn was convicted of murder, and brings error. Affirmed.
L. J Cowart, of Lyons, and Hines & Jordan, of Atlanta, for plaintiff in error.
R. Lee Moore, Sol. Gen., of Statesboro, Warren Grice, Atty. Gen and A. L. Henson, of Atlanta, for the State.
Joe Nunn was convicted of the murder of J. M. Taylor. He moved for a new trial, which was refused. The evidence for the state tended to show that a short time before the homicide the decedent and the defendant had a dispute on the public streets of Vidalia, and the former threatened to slap the defendant's face. The defendant stated to others that he intended to avenge the insult by killing the decedent whenever he caught him out of town. On the day of the homicide the defendant, who was traveling along a public road in a buggy, stopped to converse with an acquaintance, and while thus engaged in conversation the decedent passed by traveling in a buggy. The defendant remarked to the man with whom he was conversing that he intended to kill the decedent. The defendant overtook the decedent and shot him in the back, without warning. After the first shot the decedent pleaded with him not to shoot again, but, with an oath, he fired four more shots from a pistol. The defendant's version of the tragedy, as detailed in his statement, was substantially this: When he caught up with the decedent he made an effort to pass him on the road, but the decedent would cut his buggy across the road in an effort to prevent him. He succeeded in passing, and remarked to the decedent, "By the way you are doing it looks like you intend to slap my poor old jaws again." The decedent replied, "God damn you, I want to stamp your God damned liver out," and commanded the defendant to stop. Decedent jumped out of his buggy and caught hold of the top of defendant's buggy, and started to catch hold of his knees, and the defendant commanded him to get away from the buggy. The decedent stepped back, and the defendant drove on. The decedent then jumped into the buggy and came on, cursing the defendant, and said that he was going to prosecute the defendant for drawing a pistol on him and raising a row with him on the public road. The defendant replied that he had not raised any row, and had not drawn...
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