Perdue v. State
| Decision Date | 18 October 1910 |
| Citation | 69 S.E. 184,135 Ga. 277 |
| Parties | PERDUE v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Where remarks are made by the trial judge to counsel in a criminal case in the hearing of the jurors, which counsel contend were of such a character as to prejudice the minds of the jurors hearing them against the cause of their client, they should either move for a postponement of the hearing in order that other jurors may be impaneled than those present when the remark is made, or, if the jurors have actually been selected and impaneled to try the particular case, a motion should be made to have a mistrial declared; and upon the judge's refusal to grant a motion of the character indicated his ruling would be subject of review. Counsel, having failed to make such motion and having proceeded without objection with the trial, cannot, after conviction, raise the question as to the prejudicial nature of the remarks complained of, in a motion for a new trial.
An erroneous charge to the jury, to the effect that if they should find the defendant guilty of voluntary manslaughter the form of their verdict would be, "We, the jury, find the defendant not guilty," was such an apparent slip of the tongue that the jury could not have been misled into believing that, if they found the defendant guilty of that offense, it would have the effect of discharging him from all punishment, especially as the judge had previously in his charge covered the subject of voluntary manslaughter, and expressly stated to the jury that under certain facts and circumstances, hypothetically stated, the defendant would be guilty of voluntary manslaughter, and that it would be the duty of the jury to find him guilty of that offense, if they found from the evidence such facts and circumstances to exist.
Where one inflicts upon another a wound with a weapon likely to produce death, and the person wounded actually dies in consequence of the wound, the quality of the act of the slayer cannot be affected by a lack of skill and care upon the part of those who treat or attempt to treat the wounds and administer remedies therefor.
The court did not err in refusing to charge the jury, upon request, that "if you believe from the evidence in the case or the statement of defendant that, at the time Porch was shot, he was attempting to unlawfully arrest the defendant, the defendant had a right to resist the arrest and if in so doing he shot Porch for the purpose of disabling him, and not to kill him, and he died afterwards as the result of the wound or wounds, then you should find the defendant guilty of involuntary manslaughter in the commission of a lawful act without due caution or circumspection."
It is not error for the court to refuse to give a charge as stated in a written request, where the subject of the request is sufficiently covered by the general charge.
In the absence of a pertinent timely request, the failure of the court to charge on the subject of impeachment of witnesses affords no ground for granting a new trial by this court.
As a general rule, hearsay evidence should not be admitted.
"In the trial of a murder case, if at the time of making declarations the condition of the wounded party making them the nature of his wounds, the length of time after making the declarations before he expired, and all the circumstances make a prima facie case that he was in the article of death and conscious of his condition when he made the declarations such declarations should be admitted in evidence by the court, under proper instructions to the jury."
While the circumstances under which the gun was placed in the buggy of the accused on the evening of the homicide were material for the investigation of the jury, the state contending that the accused had gone to his home and there procured the gun and returned to the place of the homicide with it, and the defendant contending that it had been placed in his buggy by one to whom he had delivered it for the purpose of examination and trial with a view of his buying it, the exclusion of the statement of a witness that he had "told him that evening that he had decided not to buy the gun" was not cause for the grant of a new trial where the witness was permitted to relate fully the facts and circumstances attending the return of the gun and the placing of it in the buggy of the accused.
The exclusion of the answer of a certain witness to the effect that the accused "was quiet" at the time when his conduct was a proper matter of inquiry is not cause for granting a new trial, it appearing that the facts and circumstances showing the conduct of the accused at that time were fully brought out in the evidence, although the direct answer quoted above should not have been rejected on the ground that it was a statement of a conclusion and not a fact.
Evidence that the deceased had bought whisky two or three months before the date of the homicide was properly excluded, where such evidence was offered to establish the fact that the deceased was "a drinking man, and drank while on duty, and that he was willing to violate the law in order to get whisky."
Witnesses, in giving their testimony, except in cases where expert or opinion evidence is proper, are restricted to statements of facts, and are not permitted to state conclusions deduced by them from facts observed.
The evidence relied on by the defendant in the present case, even if it would authorize the finding that the jurors might have formed a fixed opinion that the accused was guilty of the crime with which he was charged, and for that reason were incompetent jurors, did not require that finding by the judge, who was the trior of the question raised by the attack upon the competency of the jurors, and therefore did not raise a conclusive legal presumption of disqualification; and the trial judge did not abuse his discretion in overruling the objection to the jurors on the ground of their incompetency.
Error from Superior Court, Pike County; E. J. Reagan, Judge.
Benjamin F. Perdue was convicted of murder, and brings error. Affirmed.
A. A. Murphy, R. L. Berner, E. F. Dupree, J. R. Cooper, and E. M. Owen, for plaintiff in error.
J. W. Wise, Sol. Gen., Bloodworth & Bloodworth, Jno. C. Hart, Atty. Gen., J. F. Redding, and J. Y. Allen, for the State.
Benjamin Perdue was tried on an indictment charging him with the offense of murder, it being alleged that he had unlawfully and feloniously shot and killed one Benjamin Porch. It appears from the evidence that the deceased was shot on the night of the 19th of September, 1908. Two wounds were inflicted. In each wound were many small shot fired from a shotgun. The deceased was shot between 2 and 3 o'clock a m., and died at 3 p. m. of the same day. The defendant in his statement admitted firing one of the shots that struck the deceased, but claimed that the other shot was fired by another person. Porch died from the effects of the wounds, according to the testimony of several witnesses. The accused insisted that, at the time he fired on Porch, the latter, who was the town marshal of the city of Barnesville, was threatening to arrest him, and was advancing on him at a time when he was not committing any offense against the state or the ordinances of the city of Barnesville. He insists that the threatened arrest was illegal, and that the deceased, upon being informed that the accused was about to start home, replied that he was going to lock him up, and when the accused expostulated, protesting that he had done nothing to be locked up for, Porch replied that he should not go now, that he was going to lock him up again or kill him, and that the deceased then stepped off the sidewalk into the street and advanced towards the accused, who reached into his buggy and got his gun and fired at the deceased, not for the purpose of killing him, but to prevent the deceased from shooting him, just as deceased stepped from the sidewalk and drew his pistol. The accused claimed, in his statement, that he might easily have killed Porch by shooting him in the head or other vital spot, but that he shot solely for the purpose of preventing a felonious attack upon himself; that he fired only one shot, and that, just as he fired, one Martin, who testified as a witness for the state on the trial of the case, appeared immediately by his side, and that Martin made the second shot, grabbing the gun just after the accused had fired the first shot, and that when Martin "grabbed the gun" the accused readily turned it loose, supposing that Martin seized the gun for the purpose of preventing the accused from shooting again. There was evidence introduced by the state to show that the accused fired both shots. The deceased, in his capacity as a police officer, had arrested the accused earlier in the night, and, after having confined him in the city prison for a short time, had released him. There was also introduced by the state evidence of previous threats made by the accused to kill the deceased if he should ever undertake to arrest him. The witness Martin testified that Perdue had gone to his home after his arrest and release earlier in the night, had gotten his gun and returned to the city of Barnesville, and had said that he intended to kill the deceased. The accused introduced evidence to show that the gun had been placed in his buggy, while he was in the city earlier in the evening, by one with whom he had left the gun for the purpose of examination; that a trade had been negotiated between them for the sale of the gun, but that the intended purchaser had decided not to buy the gun and had returned it to him, placing it in Perdue's buggy, under the apron of the buggy. Other evidence was introduced, which it is unnecessary...
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