Perry v. State
| Decision Date | 31 January 1900 |
| Citation | 36 S.E. 781,110 Ga. 234 |
| Parties | PERRY v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. A medical expert, after describing a wound and its location and giving his opinion as to the character of the weapon by which it was caused, may testify to the opinion that the blow came from the rear of the injured person. Any witness, after examining a physical instrument, may testify to the opinion that it is a deadly weapon.
2. It is competent, in a trial for murder, to prove that shortly after the mortal wound was inflicted the accused made declarations and did acts evidencing malice towards the injured person, or indifference to his fate.
3. The law of circumstantial evidence is not, without qualification applicable in a case where the state proves a positive confession of guilt.
4. It is not erroneous to refuse to charge requests which are inapplicable to the issues involved. An inaccuracy in charging which could have resulted in no injury to the losing party is not cause for a new trial.
5. There is, in a trial for murder, no error in rejecting evidence offered merely to affect the action of the jury on the question of punishment.
6. The verdict was warranted, and the record discloses no cause for a new trial.
Error from superior court, Wilkes county; S. Reese. Judge.
Fred Perry was convicted of murder, and brings error. Affirmed.
H. M Holden and A. W. Stephens, for plaintiff in error.
R. H Lewis, Sol. Gen., Harrison & Bryan, and J. M. Terrell, Atty. Gen., for the State.
LUMPKIN, P.
J.
At the last term of this court the cases of Will Taylor and Fred Perry, who had been jointly tried and convicted of the murder of Jep Dennard, were here on separate writs of error, upon each of which the judgment below was reversed. See 108 Ga. 384, 34 S.E. 2. At the next ensuing term of the trial court the accused were tried separately. Taylor was found guilty, and, under the recommendation made by the jury, sentenced to imprisonment in the penitentiary for life. This ended his case. Perry was convicted without recommendation, and sentenced to be hanged. He made a motion for a new trial, to the overruling of which he excepted, and his case is again before us. The evidence warranted a finding of the following facts: Dennard, the deceased, in the capacity of "guard," had charge of a number of persons who had been convicted of misdemeanors and sentenced to work upon a chain gang. They were not, however, employed, as they ought to have been, upon public works, but, under Dennard's supervision, labored upon a private farm, and were not under the management or control of the county authorities. Taylor, Perry, and several others composed the gang. When not at work they were kept in one room of a house, the only remaining room of which was occupied by Dennard. There was no door between these two rooms. All of the convicts except Taylor, Perry, and two others were confined to a large chain. The two named were whispering to each other most of the afternoon of Sunday, January 8, 1899, and neither of them conversed with any other convict. While, under the rules promulgated by Dennard, all conversations had to be carried on in a low voice, there was no rule requiring the convicts to talk in whispers. The whispering between Taylor and Perry was an unusual occurrence. Late in the afternoon mentioned, Dennard, from his room, directed them to bring to him some articles which he needed. They went into Dennard's room, and remained there one or two minutes. There was a scuffle in the room, and a noise as if something had fallen. While these men were in Dennard's room, he received upon the head a mortal wound, from which he soon became unconscious, and as a result of which he died the next day. The wound was inflicted with a stick of wood, which was a weapon likely to produce death. The indications were that the blow came from Dennard's rear. Immediately after he was struck, Taylor and Perry returned to the room of the convicts, the former in advance, having in his possession Dennard's gun, pistol, and watch, and Perry following closely with an ax in his hand. Neither said anything as to what had happened to Dennard until Perry, upon being asked the direct question, "Where was he sitting at when you all hit him?" replied, "He was sitting by the fire when us hit him." Taylor took the ax from Perry, and with it broke the lock on the large chain, thus releasing from it all the convicts whose shackles were thereto attached. They all went out of doors. Dennard, who was standing near the house, asked, "What's the matter here?" and spoke no more, being in a dazed and helpless condition. Referring to him, Perry said: "Put him in there [meaning in the house], God damn him! and let's go." He and Taylor then placed Dennard in the house, and fastened the door so that it could not be opened from the inside. All the convicts then fled from the place, Perry taking with him Dennard's gun. About two hours later, from a place of concealment by the roadside, they saw a physician who was going to Dennard's relief. Perry proposed to kill the doctor, and, when one of his companions remonstrated, threatened to kill the latter.
To the foregoing, which is a condensed but accurate statement of what the jury could legitimately conclude took place on the day of the tragedy, it is proper to add what follows: Perry, after his arrest, admitted that he was in Dennard's room when the fatal blow was inflicted, and, without charging the crime upon Taylor or confessing or denying his own guilt, simply said he did not know who struck the blow. In his statement to the jury he denied being in Dennard's room at the time the crime was committed, and protested that he had nothing whatever to do with the homicide. He also stated that, a few days before the day of the crime, Dennard had given him a severe flogging, and on that day had not allowed the convicts enough to eat. Taylor, who had already been convicted and sentenced as above stated, was sworn as a witness for Perry, and testified positively that he (Taylor) struck the blow which killed Dennard, because Dennard threatened to whip him and was about to do so; that Perry was not present at the time, and had nothing whatever to do with it; and, further, that there was no conspiracy or understanding of any kind between Perry and himself to kill or harm Dennard. He explained the "whispering" by stating that it related to another matter, the particulars of which he undertook to relate. There was absolutely nothing in Taylor's testimony to the effect that he struck Dennard in order to escape from custody. Indeed, there was not a syllable of evidence that the blow was struck for any such purpose. On the contrary, Taylor testified positively and unequivocally that the crime would not have been committed if Dennard had not tried to whip him, and gave no other reason for striking Dennard. He used the expression, "I struck through fear," manifestly meaning the fear of a beating. He did testify he had been told that it was an unlawful chain gang, but said nothing in this connection about escaping therefrom. He mentioned the character of the chain gang merely as a justification for freeing the other convicts after he had struck Dennard, and gave as an additional reason for setting them at liberty that he thought his chances for avoiding capture would be better if many convicts were at large at the same time. For the purpose of impeaching Taylor, the state proved that after his arrest he repeatedly stated that Perry struck the fatal blow, and also that he (Taylor) did not know who struck it. We will now consider the grounds of the motion for a new trial:
1. It is alleged that the court erred in allowing the physician to testify that in his opinion the mortal blow was inflicted from Dennard's rear, and in allowing another witness to testify that the stick of wood with which the blow was struck was a weapon likely to produce death. There was no error in admitting any of this testimony. The physician was not only an expert, but based his opinion upon the facts which he stated; and certainly any witness, after describing an instrument, may express under oath the opinion that it is capable of causing death.
2. Error is alleged in admitting the testimony relating to Perry's proposition to kill the doctor, and his threat to kill the person who protested against his so doing. This testimony was admissible. It tended to show declarations and conduct on Perry's part evidencing malice against Dennard, or indifference to his fate. Such declarations and conduct are in the nature of incriminating admissions of the existence of malice.
3. The court was requested to charge upon the law of circumstantial evidence, the request being evidently based upon the theory that there was no direct evidence of Perry's guilt. We cannot say the request was improperly refused, for there was evidence of a confession that Perry actually participated in the killing, and such evidence is not circumstantial, but direct. Eberhart v. State, 47 Ga. 599.
4. Several requests to charge were presented to the judge, with the object of having the jury instructed that, if Perry conspired with Taylor merely to commit an assault and battery upon Dennard for the purpose of effecting an escape, he would not be chargeable with the homicide, or that even if Perry entered into a conspiracy to kill Dennard, or himself killed Dennard, for the purpose of escaping from the chain gang, it being an unlawful one, he would be guilty of manslaughter only. Error is assigned upon the refusal of the court to give these requests to the jury, and also upon a charge that "where men combine to do an unlawful act, and one goes a step beyond the rest, and does acts which they did not...
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