Parker v. State, 14757.

CourtSupreme Court of Georgia
Citation29 S.E.2d 60
Docket NumberNo. 14757.,14757.
PartiesPARKER. v. STATE.
Decision Date12 February 1944

29 S.E.2d 60


No. 14757.

Supreme Court of Georgia.

Feb. 12, 1944.

[29 S.E.2d 62]
Syllabus by the Court.

1. The preliminary evidence was sufficient to establish a prima facie foundation for admission of the testimony as to statements made by the deceased and offered by the State as dying declarations.

2. Where, on the trial of a husband for the alleged killing of his wife by shooting her with a shot gun, there was evidence of a statement by the wife to the effect that her husband had intentionally shot her without cause, and of circumstances authorizing its consideration as a dying declaration, admission of evidence of an additional statement indicating that she "wanted something done with him, " but clearly based on her declaration and claim that he meant to kill her and shot her without cause, was not sufficient ground

[29 S.E.2d 63]

for a new trial, even though such additional statement might not have come within the limited purpose for which dying declarations may be admitted.

3. The judge gave in charge Code, § 38-307, as to dying declarations, and instructed the jury generally as to their function in considering evidence of such declarations. If a more specific charge was desired, it should have been requested.

4. Where a husband is on trial for the alleged murder of his wife, evidence tending to show a course of ill-treatment and cruelty on his part toward her, continuing until shortly before the homicide, is admissible. Such evidence tends to show malice and motive, and to rebut the presumed improbability of a husband murdering his wife.

5. Where the judge in admitting testimony makes a statement in the presence of the jury, which the accused deems improper, he cannot wait until after verdict and then complain for the first time in a motion for new trial.

6. Where the State introduced evidence tending to show previous ill-will and mistreatment on the part of the defendant toward his wife, mere failure of the court to instruct the jury as to the purposes for which such evidence might be considered, was not error.

7. If one with an intent to kill makes an attack upon another with a shot gun, and in the course of such attack, the gun is accidentally discharged, with the result that the other person is killed, the offense is murder. In no view of the evidence did it involve the offense of involuntary manslaughter in the commission of an unlawful act, and the judge properly omitted to charge on such offense.

8. On the trial of a defendant indicted for murder, where the homicide is proved, the presumption is that the killing was murder. If there be circumstances of justification or mitigation, the burden of proving them is on the defendant, unless they appear from the evidence offered by the State.

The evidence authorized the verdict, and the court did not err in refusing a new trial.

Error from Superior Court, Screven County; T. J. Evans, Judge.

Hubert Parker was convicted of murdering his wife, and he brings error.


Hubert Parker was indicted for the offense of murder in killing his wife, Mrs. Waldeen Parker, on May 13, 1943, by shooting her with a shot gun. He contended that the shooting was accidental, while the State contended that it was intentional and malicious. He was convicted with a recommendation to mercy, and his motion for a new trial being overruled, he excepted.

His motion contained the usual general grounds, and 18 special grounds, added by amendment. In some of these grounds, he complained of admission of testimony of different witnesses as to declarations claimed to have been made by the deceased and offered by the State as dying declarations. He also, in some instances, complained of the admission of evidence of a different character. In still other grounds, he assigned error upon a statement by the judge in admitting testimony, and upon excerpts from the charge of the court, and omissions to charge.

It appeared from the evidence that on the date named in the indictment the defendant and his wife were at their home on a farm in Screven County. The wife was only about nineteen years of age, and he was about twenty-one, although they had been married for about four years. At about noon, Mr. and Mrs. Alton Parker, who lived a few hundred yards away, were attracted by outcries, and on looking, saw the defendant bringing his wife in his arms along the road toward the Alton Parker home. They immediately sought to give aid, and Mrs. Parker reached them after they had come about 150 yards, and the defendant had sat his wife on the ground in the shade of some bushes. The wife had been shot in her right leg, a little above the knee, and was bleeding profusely. It appeared that the shooting took place in the kitchen of their home. On the trial, the defendant contended that his wife had requested him to shoot a chicken, that she might cook it for dinner; that he went into the kitchen with his gun, asking which particular chicken he should kill; and on receiving reply that it made no difference, he started to leave the kitchen, when his gun accidentally struck some object and fired. There was evidence that his wife made statements to the effect that he came into the kitchen threatening to

[29 S.E.2d 64]

kill her, that he cocked the gun and pointed it at her heart, and that she caught the gun and knocked it down, with the result that she was shot in the leg. There was evidence of previous ill treatment, including complaints made by the deceased to her mother in the presence of the accused. There was no eyewitness to the shooting, and the State relied upon testimony as to declarations by the deceased, and upon circumstantial evidence. The State introduced over objection evidence of four different statements by the deceased, one of them being made to Mrs. Alton Parker, at or near the place where she first reached the defendant and his wife; one in the presence of several persons after the injured woman had been placed in a truck to be taken to a hospital; and two at the hospital on the same afternoon that the shooting occurred. The woman died at the hospital early Saturday morning, somewhat less than two days after she was shot.

As to the first statement and the circumstances under which it was made, Mrs. Alton Parker testified: "* * * When I got there I went up there and asked them why in the world did they do that, how in the world come them to do that, so Hubert said it is an accident, and so I said well how did it happen, he was over her with his arm around her and he said, 'Darling, I love you, ' and she said, 'Well, you have killed me, too, ' and so I asked her, I says, 'How did it happen, ' and Hubert said on the back porch shooting a chicken, and he said on the back porch shooting a chicken; I was so excited I couldn't say how many minutes from the time I heard the hollering until I was there and this statement was made I reckon it was as much as five minutes. As to whether I remained there, well, when they said that, when they finished, she said 'everything is turning black to me, ' and she said, 'Get a bucket of water, get a whole bucket full and pour every bit of it on me, ' and I carried her a pan of water and a wash cloth and paper, through the excitement I couldn't find a fan, I carried a newspaper down there, I couldn't find a fan and I carried a newspaper down there to fan her with, and when I got back down there, they asked me to go and get Alton to crank the truck and take her to the hospital, so I turned around and went back to get him and told him what he said and he went to the house and I tried to make up my mind what to do; I was gone a little bit and I finally decided to go to the railroad and when I went to the railroad I saw him coming and I waited until he got there, and he said the doctor was coming. I waited until he got there and we both went on back down there and he said the doctor was coming. Alton beat me down there just a few minutes and Hubert had gone to the house, and I asked Waldeen where is Hubert, she made a statement then and there to me about how this happened. At that time I saw where she was bleeding from and where she was wounded, she was bleeding terribly. Judging from the nature of that wound as to whether I would say that she was in a dying condition--I figured her condition was serious, I thought it was very serious, she seemed to think she was going to die. As to whether she was conscious of her condition, she seemed to be so as much as anybody could, and then under those circumstances she made a statement, that is correct. This was on Thursday, I would not be positive about the time of the day but it was just before noon, that was on Thursday and she died Saturday morning if I make no mistake. I couldn't tell you exactly what time. Whenever she made her statement to me, that was the third time I was there. I could not say how long that was from the first time I was there, anywhere from six to seven minutes I guess. I will state to the jury the statement she made to me as to the cause of her death and the wound. I asked her, I said, 'Waldeen, ' I says, 'how come Hubert to shoot you, ' and she said that Bernice and them told him a whole mess about her and Sid Parker and he shot her, she said she was in the kitchen cooking dinner and doing the very best she could. As to whether she made any statement then with reference to it, well, you know she asked me had I ever heard of anybody being like that and getting over it, she didn't say anything about thinking she was going to get over it, she just asked me if I had ever heard of anybody being like she was and living, and I told her well, I never had heard very much and it seemed like she was under the impression, I don't know just how to express it, but I tried to encourage her because I was with her while they were cranking the truck, while I was there she said everything was turning black and to get a bucket of water and pour on her. I went with them to the hospital.''

[29 S.E.2d...

To continue reading

Request your trial
1 cases

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT