Peterson v. The State Of Ga.

• Decision Date: 31 January 1873
• Citation: 47 Ga. 524
• Parties: GUSTAVUS PETERSON, plaintiff in error. v. THE STATE OF GEORGIA, defendant in error.
• Court: Georgia Supreme Court

47 Ga. 524

GUSTAVUS PETERSON, plaintiff in error. v. THE STATE OF GEORGIA, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1873.)

Criminal law. Indictment. Witness. Confessions. Opinions. Recommendation to imprisonment for life. Reasonable doubt. Before Judge Strozier. Dougherty Superior Court. June Adjourned Term, 1872.

Gustavus Peterson was placed upon trial for the murder of John Sims, alleged to have been committed April 2d, 1872. The defendant pleaded not guilty. The evidence made the following case:

The defendant was standing on the railroad bed when he shot John Sims; the deceased and his wife, a colored woman named Alice, were in a house; the defendant's wife had recently givenbirth to a child; defendant called to Alice and asked her to bring his child out there; Alice replied she did not wish to go out there; the deceased said take his damned child out there; Gustavus said, "Come out here sir, and tell Alice to give me my damned child;" deceased then went to the door and said, "come out here, Alice, and give him his damned child;" defendant said "come clear out here, and tell Alice to give me my damned child;" deceased went out and said it; defendant then said, "John, you are the occasion of me and Alice being parted;" deceased replied, "how am I the occasion of it;" defendant said, "you were the cause of it, with your damned smartness." They then commenced cursing each other, the defendant having somewhat the advantage in the war of profanity. Defendant drew a pistol, shot deceased twice, and then ran towards town as rapidly as possible. At the first shot, deceased fell on his knees, at the second, he came into the lot and asked for help. Alice was deceased\'s wife.* She was living in a new house off from Crawford *Broadnax\'s. Deceased was living down by the railroad. The defendant confessed that he committed the homicide, alleging, at the same time, that deceased had a knife.

The jury found the defendant guilty, and recommended him to the mercy of the Court. Whereupon the defendant moved for a new trial, upon the following grounds, to-wit:

1st. Because the Court erred in refusing to quash the indictment, because it was not alleged therein that the pistol was charged with gunpowder and a leaden bullet, and that such leaden bullet, or any bullet, struck deceased and produced the wound of which he died.

2d. Because the Court erred in ruling Ellen Benton to be a competent witness, she appearing to be a mere child about three feet and a half high, and about seven or eight years old, said Ellen having, among the answers to questions put to her by the Court, stated that if she told a story she would be put in jail as a punishment therefor.

3d. Because the Court erred in excluding the impressions of the witness, Kemp, said witness having testified that the impression made on his mind, by the confessions of defendant was, that the deceased was after him with a knife, and that the defendant was justifiable in shooting.

4th. Because the jury found contrary to the following charge: (This charge was merely the reading to the jury the different grades of homicide, and the circumstances of justification as found in the Revised Code.)

5th. Because the Court' erred in omitting to charge the jury as follows: "The punishment of murder is death, but may be commuted to confinement in the penitentiary for life in the following cases: By sentence of the presiding Judge, if the conviction is founded solely on circumstantial testimony, or, if the jury trying the traverse, shall so recommend. In the former case, it is discretionary with the Judge; in the latter, it is not."

6th. Because the Court erred in the following charge: "If there

*The record is strictly followed in this allegation, though the rest of the evidence would seem to show that Alice was defendant's wife.exists any.reasonable doubt from the testimony of defendant\'s guilt, you should give him the benefit of such doubt. *A reasonable doubt is such an one as an upright man might entertain in an honest investigation after the truth, from the evidence."

The Court overruled the motion for a new trial, and sentenced the defendant to be hung. The defendant excepted upon each of the aforesaid grounds, and now assigns error thereon.

D. H. Pope; Smith & Jones, for the plaintiff in error.

John C. Rutherford, Solicitor General, for the State.

MONTGOMERY, Judge.

1. Many English Judges have regretted the nice technical particularity required by the common law in indictments. Fortunately for the preservation of the good order and peace of this State, it has for many years only been necessary to state the crime "so plainly that the nature of the offense charged may be easily understood by the jury: " Code, 4535....