Prater v. State

• Decision Date: 12 March 1925
• Docket Number: 4456.
• Citation: 127 S.E. 296,160 Ga. 138
• Parties: PRATER v. STATE.
• Court: Georgia Supreme Court

127 S.E. 296

160 Ga. 138

PRATER v. STATE.

No. 4456.

Supreme Court of Georgia

March 12, 1925

Syllabus by the Court.

The trial judge committed no error in failing to give in charge to the jury section 73 of the Penal Code.

The privilege of making a statement to the jury, accorded to a defendant in a criminal trial in this state, is an anomaly. The contents of the statement are not to be restricted or governed by the rules controlling the admissibility of evidence. "In all criminal trials the prisoner shall have the right to make to the court and jury such statement in the case as he may deem proper in his defense." Though the court may prevent repetition of the same statements, or debar the statement of circumstances wholly disconnected with the transaction which is the basis of the crime with which the defendant stands accused, still, as to the statement of facts which are connected with such transaction, and as explanatory of the motives and conduct of the accused, or as illustrative of his mental condition, the statement of the defendant cannot be withdrawn from the jury or curtailed either by rulings or interruptions, merely because the facts stated by the defendant, and which constitute a part of his narrative of his connection with the case, may, under the rules of evidence, be irrelevant, and do not present in law a valid defense.

The fourth special ground of the motion for a new trial cannot be considered.

A proper foundation was laid for the admission of testimony as to a conversation with the deceased immediately after the shooting.

Additional Syllabus by Editorial Staff.

One who kills another under fears of reasonable man that injury about to be inflicted is less than felony may be guilty of voluntary manslaughter.

Assignment of error should point out how or in what respect instructions should have been more complete, to present anything for decision.

Error from Superior Court, Upson County; W. E. H. Searcy, Jr. Judge.

Paul Prater was convicted of murder, and he brings error. Reversed.

Paul Prater was indicted for the murder of George Holloway, and was convicted. He moved for a new trial; his motion was overruled, and he excepted. In addition to the usual three general grounds of the motion, the defendant assigned the following as reasons why a new trial should be granted:

(1) That the court erred in not giving in charge to the jury section 73 of the Penal Code of 1910, in connection with the law of voluntary manslaughter as applicable to the law of mutual combat, for the alleged reason that the defendant's statement and the evidence showed that the deceased and his brother were the aggressors in the difficulty, that the deceased was advancing upon the defendant with a knife, and that one of the brothers of the deceased struck the defendant over the head with a gun. "A deadly assault was made upon the defendant by the deceased and the brother of the deceased, and the trial judge should have charged this section of the Code in connection with the law of voluntary manslaughter, for the reason, as defendant contends, that there was a mutual intention to fight, and that both the deceased and the defendant were armed with deadly weapons, and both did fight."

(2) Error in not admitting the testimony of Frank Holloway, as follows: "My brother did not run up and hit the defendant. He did not do that after I shot. I hit him with his gun. I knocked him down. I thought he was dead. I thought I had. I thought it was the defendant. I thought I killed him. I tried to kill him." The exclusion of this testimony is assigned as error, "for the reason that the same is relevant, and tends to show that this witness, who is a brother of the deceased, made an attack upon the defendant, and together with the other evidence in the case, including the defendant's statement, shows that a joint attack was made upon the defendant. Objection was made by the counsel for the state that all evidence as to the defendant having been hit or beat with a gun or stick by parties other than the deceased, also as to the defendant's statement, was irrelevant, and the same was excluded from the consideration of the jury by the court in not admitting the testimony, and his refusing to admit the testimony was highly prejudicial to the rights of the accused."

(3) Error in interrupting the argument of John R. Cooper, who was leading counsel for the defendant, as follows: "Pending the argument of Col. John R. Cooper to the jury in this case as counsel for the defendant, he made mention that this was shown by the evidence and the statement of the defendant. This was objected to by the state's counsel, on the ground that it was irrelevant, having occurred after the shooting of the deceased by other parties, and further that the evidence alluded to and the statement of the defendant had been ruled out by the court. By the Court: 'I ruled it all out that occurred after the shooting as irrelevant; also ruled out the same matter in the statement of the defendant, on the ground that he could not lug in immaterial matter through his statement.' " The exception is that it was error to interrupt the concluding argument of the defendant's counsel, while he was stating to the jury what had transpired in the trial of the case, for the reason that the defendant had the right to make to the jury such statement as he sees fit in his defense, and that part of the defendant's statement that he had been attacked by a brother of the deceased, either before or after the shooting, was material to the defense of the defendant. "The defendant contended in his statement that the deceased and his brother both attacked him before he shot, and defendant contends that the court had no right to interrupt defendant's counsel, when he was stating to the jury what the defendant claimed in his statement. This part of his statement was very material to his defense, and it was prejudicial error for the trial judge to refuse to allow counsel for the defendant to comment on the defendant's statement."

(4) Error in the following instruction of the court to the jury: "If you believe that the facts and circumstances surrounding him at the time he fired the shot, if he did fire it, were sufficient to justify the fears of a reasonable man that an injury was about to be inflicted upon him less than a felony, under these circumstances he would be guilty of voluntary manslaughter, if not justified." The exception is: "For the reason that it cuts him off from the killing a person under the fears of a reasonable man, actually believing that his life is in immediate danger, or else that a serious personal injury is about to be inflicted upon him by the deceased. If this be true, he should be acquitted, if he was acting under the circumstances as narrated by the court, and he would not be guilty of any offense under the law. Defendant excepts to this charge further for the reason that the same is misleading to the jury, because the court says that, under the circumstances as related in his charge, he would be guilty of voluntary manslaughter, if not justified. The defendant was entitled to a more complete and fuller charge on the doctrine of reasonable fears and justifiable homicide."

(5) Error in excluding from the consideration of the jury the following part of the defendant's statement: "Frank said that he would kill me, and came over and struck me over the head with his gun. He did that after the shooting." It is alleged that this part of the statement was material to the defense, because it showed that the defendant had been attacked by the deceased and his two brothers. "He claims that they attacked him before the alleged homicide and also after the homicide. The defendant has a legal right to make to the court and jury such statement as he deems proper in his defense, and the court has no right to interfere with him while he is doing so. The defendant was on trial for a capital offense, and it was prejudicial and harmful error for the trial judge to stop the defendant while he was making his statement to the jury, and telling him that he could not state certain things because they were immaterial and irrelevant."

(6) The same error is assigned because the court excluded from the consideration of the jury the following part of the defendant's statement: "After I shot, he broke and run to the door, and Frank came to the door and shot me in the back of the head. Will and Frank ran upon me, and hit me across the head with the gun, and they beat me."

(7) Error in the admission of testimony as to statements made by the deceased after the shooting, because no proper foundation was laid for its admission; the defendant contending that the conversation between the deceased and the witness was not admissible, because it failed to show that the deceased was in a dying condition and was conscious of his condition.

Grounds 2, 3, 5, and 6 were qualified by the following note of the presiding judge:

"The exceptions taken are not clear to me. What happened on the trial was that the solicitor general objected to all evidence by any witness, and to that part of the defendant's statement which related to anything transpiring after the shooting of the deceased by the defendant, and moved to exclude same from the jury's consideration, as being irrelevant and not illustrating the issue before the jury. This objection and motion was sustained by the court, and this was the extent of the court's ruling. No motion for a mistrial was made because the court interrupted and restricted the argument of counsel."

Hines J., dissenting.

W. O. Cooper, Jr., of Macon, for plaintiff in error.

E. M Owen, Sol. Gen., of Zebulon, Geo. M. Napier, Atty. Gen., and T. R. Gress, Asst. Atty. Gen., for the State...