Roberts v. State

Citation5 S.E.2d 340,189 Ga. 36
Decision Date15 September 1939
Docket Number12947.
CourtGeorgia Supreme Court

Rehearing Denied Oct. 14, 1939.

Syllabus by the Court.

1. While the defendant in a criminal case may consent to be cross-examined, the law does not allow him to be placed under oath, and neither the defendant nor the State can waive the law prohibiting a defendant from being sworn.

2. When a juror has answered the voir dire questions, and during the progress of the trial the defendant in a criminal case informs the court that he has information that the juror has made statements about the case showing his disqualification and the judge thereupon hears sworn testimony offered by defendant and then testimony from the juror, all in the absence of the other jurors, and the testimony is conflicting, the judge is authorized to find the juror qualified. Demonstrations by the spectators not in the presence of the jury afford no ground for declaring a mistrial.

3. Where the judge instructed the jury generally on the subject of voluntary manslaughter, and there was no evidence of a mutual intention to fight, it was not error to refuse to charge the law of mutual combat.

4. Where the State produces evidence proving that the defendant did the killing, such proof removes the presumption of innocence which shields the defendant when entering upon the trial, and places the burden upon him to prove alleviation justification, or excuse. But such evidence in behalf of defendant may be found in the evidence produced by the State to prove the killing, in which event it sufficiently carries this burden for the defendant. It was proper to submit this principle of law to the jury in the charge of the court.

5. The verdict was supported by the evidence.

W. M. Roberts was tried and convicted on an indictment charging him with the murder of Luby Perdue. The jury recommended mercy, and he was sentenced to life imprisonment. His motion for a new trial was overruled, and he excepted.

The material portions of the evidence were as follows: The defendant was a constable. On the day preceding the night of the homicide the deceased was at the home of the defendant, and they were both drinking. Witness Goolsby testified for the State, that he lived about fifty feet from C. J. Griggs' residence, where the deceased was boarding; that on the night of the homicide he was aroused from his sleep by loud and profane talking; that the first words he understood were in the voice of the defendant calling some one a vile and profane name; that he heard another voice saying, 'Please don't, Mr. Roberts, I haven't done a thing. I will do anything you say;' that the defendant cursed and called the other person a vile name, and added, 'I know you will, I know you will do anything I say;' that this conversation appeared to be between Goolsby's residence and Griggs' residence, and seemed to be moving toward the porch of Griggs' residence; that following this talking he heard five pistol shots--two, an interval, and then three more; that witness did not go out of his house, but Mr. and Mrs. Griggs and their little girl drove up immediately after the shooting; and that he heard Mrs. Griggs say, 'You killed Luby, Mr. Roberts,' and the defendant said, 'Yes, I killed him.' Mrs. Goolsby testified to substantially the same state of facts as did her husband. Griggs testified, that the killing was on the night of November 9, 1937; that when he arrived home with his wife and child the deceased was lying on the floor of the front porch of his residence, and the defendant was standing up over him; that he asked what the defendant was doing there, to which he replied, 'I came to see Perdue, and killed him;' that the clothing of the deceased was burning where he was shot in the body, and witness put out the fire; that the defendant had his pistol in his hand; that he noticed no indication that the defendant was beat up; that his glasses were on, and there was no disfigurement about him; that witness asked defendant to remain there until he could call the police and a doctor; that he got policeman Persons and returned with him, and found the defendant standing where he left him; that he saw a bottle of liquor near defendant when the policeman took hold of him; that the defendant, using profane language, told the policeman he had killed Perdue, whereupon the policeman ordered the defendant to cease cursing; that the deceased was carried into witness's home, and died in a few minutes without regaining consciousness; and that from an examination of the wounds the witness would say that the shots produced the death; that the deceased was a large broadshouldered man, that he drank a lot, but witness had not known of his getting drunk; and that his reputation for violence was as good as almost any one's but he had one fight with Gus Middlebrooks. Mrs. Griggs gave substantially the same testimony as that of her husband. She stated that her feelings were not kind toward the defendant, because he went to her home without any right and killed the deceased. Dr. F. S. Belcher testified that from an examination he made of the wounds he would say that death was the result of the shooting, two of the wounds being in the abdomen and three in the legs.

The defendant offered evidence that he was cut above the eye, bruised and swollen on the face, and one of his hands was badly swollen, and that his broken glasses were found near the body of the deceased. He introduced two X-ray pictures of his fingers, made by Dr. Durham, a dentist, who testified that he knew little about X-ray pictures, but that to him they indicated broken bones. Dr. Bayne testified for the defendant, that neither of the X-rays showed any bone fracture, and that he told the defendant that he thought his hand was not hurt badly, although it was swollen a little. Oscar Phillips testified that on the night of November 9, 1937, about 9:30 or 10 o'clock, the defendant came to him in front of Cannon's drugstore and requested him to go down to Griggs' house, saying somebody had some liquor there; that he did not go with the defendant; and that all he had heard of the reputation of the deceased for violence was that he had a fight and whipped a fellow, and in view of this he would say that the character of the deceased for violence was bad. Sheriff Persons testified that the defendant was bleeding over the eye on the night of the homicide, and that the next morning his eye, cheek, forehead, and thumb were swollen. He identified a chisel which he found on top of his safe when requested by the son of the defendant to look there, and testified that he did not know the piece of iron was on the safe until told two or three days after the last trial of the defendant; and that he could smell whiskey on the defendant on the night of the homicide, but he was not staggering.

The defendant in his statement said that on the night of the homicide he had the deceased and Griggs under suspicion of being bootleggers, and watched them until 6 or 7 o'clock; that it was reported to him that there was a roughhouse at the Griggs house, and he went down there and found everything quiet, and went back home; that later in the night he went down there, and asked Oscar Phillips to go with him, but he could not go because of other engagements; that he was a constable, and went by himself unless he was with the sheriff or some other officer; that as he approached the Griggs house Perdue came out with a quart of whisky in his band; that he caught Perdue by his belt, put the whisky in his pocket, and told Perdue that he would have to take him and the whisky; that Perdue was not dragging but walking the defendant back to the house; that he was stronger, younger, and larger than the defendant, and when defendant saw that Perdue would not let him go and defendant would not let him go, Perdue picked up a piece of iron and knocked him down, hitting him over the eye, defendant throwing up his hands, and in this way his thumb was broken; that defendant had his gun on his side, and shot three times low, and the legs of Perdue sugged, and he turned as if to leave, and then turned to come back, and defendant shot twice; that defendant was almost unconscious, but the fall when he was knocked down caused him to regain consciousness enough to defend himself; that there was no cursing, except that Perdue said, 'Damn your soul, I'll kill you before I go;' that when Mr. and Mrs. Griggs came up, she said, 'Mr. Roberts, what's the trouble? Have you killed Perdue?' and defendant said, 'I suppose so. He tried to kill me;' that Perdue dropped the iron with which he hit the defendant and defendant stuck it in his hip-pocket, and put it on the safe in the sheriff's office. The defendant described his bruised and swollen condition resulting from blows delivered by the deceased. There was evidence that while in the defendant's home on the afternoon before the homicide Perdue was intoxicated and used profanity in the presence of the defendant's daughter; and that on a previous trial the defendant said that Perdue hit him with something, but that he did not know what it was. A daughter of the defendant testified that when Perdue came and knocked on the door at her home on the night of the homicide, she went to the door and saw him putting something in his pocket about the size of the chisel referred to above. This chisel was introduced in evidence.

D. D. Veal, of Eatonton, and Sydney H. Baynes, of Monticello, for plaintiff in error.

C. S. Baldwin, Jr., Sol. Gen., of Madison, Ellis G. Arnall, Atty. Gen., and Emil J. Clower and Herschel E. Smith, Asst. Attys. Gen., for the State.


1. Grounds 1 and 2 of the amendment to the motion for a new trial complain because the...

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