Randolph v. State

• Decision Date: 21 May 1947
• Docket Number: No. 31557.,31557.
• Citation: 43 S.E.2d 101
• Court: Georgia Court of Appeals
• Parties: RANDOLPH. v. STATE.

43 S.E.2d 101

RANDOLPH.

v.STATE.

No. 31557.

Court of Appeals of Georgia,

Division Nos. 1, 2.

May 21, 1947.

Rehearing Denied June 5, 1947.

Syllabus by the Court.

1. The evidence amply sustains the verdict for voluntary manslaughter.

2. Where one uses a deadly weapon per se in the usual and natural manner in which such weapon is used to kill, and death results, the law presumes an intention to kill.

3. The verdict, while perhaps not in best grammatical form, was legally sufficient.

TOWNSEND, J, dissenting.

Error from Superior Court, Banks County; Clifford Pratt, Judge.

John Randolph was convicted of voluntary manslaughter, and he brings error. Judgment affirmed.

The defendant was convicted of voluntary manslaughter on an indictment for murder. He filed his amended motion for a new trial, which was overruled. Error is assigned here on the judgment overruling his motion. The defendant was accused of killing his father with a shotgun. In or-der that we may more clearly present the view of the court, we deem it necessary to substantially though in some particulars briefly, set forth the evidence. We do this since counsel for the defendant so earnestly urge their contention for a reversal.

The State's evidence: It appears from the first witness, William Randolph, 75 years of age, who lived in Alabama, that he made a visit to the home of the deceased who was his cousin. The deceased, together with his wife, and the visiting witness, went to church, returning between 11 and 12 o'clock at night. A car was hired from a neighbor to make the trip to the church. After they returned from church the visiting witness was told by the deceased to go to a room and retire. Within about five minutes thereafter the witness heard a gun fire. He arose and left the home, stating to the wife of the deceased, who was then on the porch, that he could not stay there under such conditions. Witness heard no quarrel or no words of any kind before the gun was fired. At the time the deceased told the visiting witness to go to bed, he had a shotgun in his hand. The witness did not know if anyone had been shot when witness left the home. He went to a neighbor's house and stayed there until the sheriff went for him. He did not hear anyone say that night after he returned home, where the homicide occurred, as to what the killing was about or how it happened.

The next witness, Rembert Casey, testified that he lived within a mile of the deceased on the same farm with the deceased; that he carried the deceased and his wife and the visitor to church in his car; that after he returned to the home of the deceased from church witness went then to his own home; that shortly after witness returned to his home and retired, the accused came to his house and told witness that he wanted witness to take accused to Commerce. Upon inquiry, the witness learned from the accused that the accused had shot his father. The accused stated that he did not know whether or not he killed his father. The witness and the accused returned to the home of the deceased where witness learned that the deceased was then dead. The defendant did not get out of the car. The witness and the accused went from there to Commerce where the homicide was reported to the police force, and where the defendant surrendered himself and asked that the sheriff be called. From there the witness and the accused returned to the home of the deceased. The accused did not tell the witness at any time why he shot his father. When the witness returned to the home of the deceased, the sheriff was there. The wife of the deceased and the defendant, John Randolph, told the sheriff "about how it happened." Witness could not remember all the defendant told the sheriff. He did remember the sheriff asking the defendant why he killed his father and the defendant said that he, the defendant, was taking up for his mother. The sheriff inquired of the defendant what the deceased was doing to the mother and the defendant told the sheriff that the deceased told her to leave, or "something like that." The witness could not remember very well.

The sheriff testified that on the night of the homicide he was called to the home of the deceased; that he found that the deceased was dead in his bed, clad in his night clothes; the deceased was lying on the side of his bed with his head over on a trunk. The sheriff examined the head of the deceased. It was blown off. The head was packed with cotton where it was shot off. All of the face of the deceased, and the upper part of his head, was shot off. The defendant, John Randolph, was present in the house when the sheriff went in. The sheriff began to investigate and the defendant had "a mighty little to say." The wife of the deceased, the mother of the defendant, was also in the room. She stated to the sheriff that she would tell him the truth; she told the sheriff that after the visiting cousin and the witness and the deceased returned from church, that the visiting cousin had, on his arrival at the home, before they went to church, kissed the wife of the deceased; that from then on everything went along all right until they returned from church; after then the deceased began to raise trouble and got the gun and was fixing to make the wife of the deceased leave. The defendant, John Randolph, was not there at the time of the trouble between the deceasedand his wife. The sheriff did not remember what the defendant said during this conversation with the wife of the deceased. He didn't say much. He did say that his father was wanting to kill his, the defendant's, mother, and that the deceased had it in for the defendant's mother sometimes. The sheriff asked the defendant if the defendant had any trouble with his father, the deceased, and the defendant replied that his father tried to dig him to death with a hoe one time and that the defendant's mother prevented the deceased from doing so. The sheriff found the gun with which the deceased was killed, over the door on a rack. He did not know whether or not it was loaded; that the sheriff's son, Vernon, who was present, knew more about the gun than did he, the sheriff.

Russell Randolph, Jr., the brother of the defendant, was present in the room during the conversation with the mother. Neither Russell Randolph nor the defendant had anything to say about the shooting. When the mother "told me about how the shooting took place" she did not say that the deceased was sitting on the bed with the gun pointed toward her when the defendant shot him. Neither the defendant nor his brother told the witness how the shooting happened. Cross-Examination: All the defendant said was that he killed the deceased in defense of his mother. His mother told the sheriff that she was out on the porch after returning from church when the defendant came up and she said "John, got the gun and went back in there and shot him [meaning the deceased]. My boy got the gun behind the bed."

Verner Brewer, the son of the sheriff, who accompanied the sheriff to the scene of the homicide, testified substantially: That upon arrival inquiry was made as to the trouble, and the officers were informed that a killing had taken place. Whereupon the witness went to where the deceased was lying and found the deceased dead with gun shot wounds, as we have already related in the evidence of the sheriff. An empty gun shell was picked up from the floor and handed to the witness by Russell Randolph, Jr., the brother of the defendant. Witness then went to the wall, near the bed where the deceased was lying, and looked at a double barrel shotgun; there were no shells in it (the deceased was killed, according to all the evidence, by a single barrel shotgun which was in the rack over the door) and the double barrel shotgun referred to by the witness was the gun which the defendant claimed was held by the deceased at the time of the killing and which, according to his contentions, was held by the deceased and being pointed at the mother of the defendant by the deceased. The defendant did not say anything to the witness. His mother did the talking, although she was talking in the presence of the defendant. The mother stated that she was going to tell the truth. She related the incident of the cousin kissing her, and that when the deceased and the visiting cousin and the mother returned from church the trouble started between the deceased and the mother. Thereafter she went on the porch and while sitting there crying her two sons, John Randolph, the defendant, and Russell Randolph Jr., came up. The defendant inquired of her what was the trouble and she told him that the deceased said she had to leave home; that the defendant than went in the house "and got the gun and shot him."

On cross-examination the same witness testified that the double barrel shot gun was on the right hand side at the head of the bed where the deceased was lying. Witness could not tell whether the double barrel gun had just been unloaded.

Statement of the defendant and his testimony: "Well, me and my brother had been to church and when we came back the house was dark and when we got there mama was sitting on the porch crying and I asked her what was the matter and she said that papa got after her and tried to kill her because Uncle Willie kissed her. And I said 'Come on, let us 'go in the house, he ain't going to hurt you, ' and so we went in the house and my brother went in there and lit the lamp and brought it in there and we went in there where he was and papa was sitting there on the bed with the gun in his hand like this and he said 'I told you if you came in here again I was going to kill you' and he pushed the gun out that way and when he did that I reached upover the door to get the gun to shoot it out of his hand to keep him from shooting her and I liked him as good as I did mama and so after the gun went off I went to town to call the sheriff, and I wasn't mad at him and he wasn't mad at me."

Caroline Randolph, the...