Roberts v. State

• Decision Date: 13 June 1905
• Citation: 51 S.E. 374,123 Ga. 146
• Parties: ROBERTS. v. STATE.
• Court: Georgia Supreme Court

123 Ga. 146

51 S.E. 374

ROBERTS.

v.STATE.

Supreme Court of Georgia.

June 13, 1905.

1. Homicide—Evidence.

The evidence fully authorized the jury to find that the deceased was murdered, that the accused was the murderer, and that the defense of insanity was not sustained.

2. Same—Instrument Causing Death.

The circumstances tending to show that the deceased was killed with the instrument named in the indictment were sufficient to warrant the jury in finding that this charge was sustained.

3. Same.

When the body of a woman alleged to have been murdered was found upon a bed in a room of the house which she occupied as a dwelling, with the head crushed in two places, in such a manner as to indicate that the fatal wounds were inflicted with some blunt, smooth, and round instrument, which crushed the skull without breaking the skin, such as a pole or piece of iron piping, and, shortly after the discovery of the body, bloody bedclothes were found behind a cot in the same room, and a curtain pole, fractured about the middle—the breaks appearing to be fresh—was found behind a trunk in an adjoining room, such pole, upon being identified by witnesses who so found it, was admissible in evidence upon the trial of the person charged with the murder.

4. Criminal Law—Argument.

When the facts above indicated were shown by the evidence, and the pole was introduced, the solicitor general had the right, in his argument to the jury, to contend that this pole was the weapon used by the murderer.

5. Murder—Evidence.

When a husband is on trial for the alleged murder of his wife, evidence tending to show a long course of ill treatment and cruelty on his part toward her, continuing until shortly before the homicide, is admissible. Such evidence tends to show malice and motive, and to rebut the presumed improbability of a husband murdering his wife.

[Ed. Note.—For cases in point, see vol. 26, Cent. Dig. Homicide, §§ 289, 298, 322.]

6. Criminal Law—Objections to Evidence.

The testimony of a witness that on a given occasion a particular person appeared to be excited, or did not so appear, is not subject to objection upon the ground that it is a mere opinion or conclusion of the witness, and therefore inadmissible.

[Ed. Note.—For cases in point, see vol. 14, Cent. Dig. Criminal Law, § 1037.]

7. Same—Instructions.

Upon the trial of a criminal case, it is not error for the judge to shape his general charge to the jury upon the evidence alone, but he should at some stage of the change appropriately instruct the jury with reference to the prisoner's statement.

8. Homicide—Insanity.

The trial judge fully instructed the jury in reference to the law applicable to the defense of insanity, and the amount of mental capacity necessary to commit the crime charged, and did not err in failing to repeat the charge upon the subject of such mental capacity, in immediate connection with his instruction that if the jury should find that the accused took the life of the deceased as charged, and was at the time of such mental unsoundness as to be incapable of committing a crime, they should acquit him.

9. Same.

There was no error in refusing to charge that the defendant had introduced evidence of his insanity at the time the alleged offense was committed, and that, if the jury believed from a preponderance of the evidence that at the time of the alleged offense the accused was insane, they should acquit him.

10. Criminal Law—Statement of Solicitor General.

The fact that the solicitor general, after asking a witness for the accused if he had not, during the course of his examination, made a certain statement, and eliciting from the witness the reply that he had not said to the witness, in the hearing of the jury_; "I say that you did, " is not cause for a new trial, although the statement of the prosecuting officer was objected to at the time, and the court failed to rebuke his improper conduct, as the jury, having heard all of the testimony of the witness, were not at ail likely to be misled by such statement, and the particular question about which the dispute arose was immaterial.

(Syllabus by the Court.)

Error from Superior Court, Walker County; W. M. Henry, Judge.

J. B. Roberts was convicted of murder, and brings error. Affirmed.

Roberts was indicted for the murder of his wife, and upon his trial, in February of the present year, he was convicted upon evidence which was wholly circumstantial. He made a motion for a new trial, which was overruled, and he excepted. The grounds of the motion were: (1) That the verdict was contrary to law. (2) That it was contrary to the evidence. (3) That it was contrary to the law and the evidence, and without evidence to support it. (4) Because the indictment charged that the offense was committed by striking the deceased with a curtain pole, and the evidence wholly failed to show that it was committed in this way. (5) Because the verdict was strongly against the weight of the evidence introduced to show the insanity of the accused at the time the alleged crime was committed. (6) Because the evidence clearly showed that at the time of the homicide the accused was of such unsoundness of mind as to be incapable of forming a criminal intent. (7) Because J. S. Wilson was permitted, over the objection of the defendant, to testify as follows: "On New Year's morning I passed Mr. Robert's home. He was in the house, and seemed to be going from one part of the house to the other. He was saying 'God damn' something or other. I didn't understand what names he used. I didn't understand very much. He was talking to his wife. I heard her say 'Papa' a time or two. That was all I heard her say." (8) Because this witness was allowed to testify: "He (defendant) did not appear to be excited when he came to me in the woods. After I got back from Chattanooga-he appeared to be excited. That was both before and after his children came." (9) Because the court permitted J. P. Tucker to testify: "I don't know whether he (defendant) appeared to be excited, or not, when I got there (to his house) he seemed to be in trouble or something. He was taking on a great deal about it." (10) Because the following evidence of Mrs. De Witte was illegally admitted: "Last summer I heard Mr. Roberts call his wife an 'oldbitch.' I guess that is about all I heard. Mr. Roberts was sitting at the east side of the house, and Mrs. Roberts was sitting on the ground, by a tree, when he called her that. I saw Mr. Roberts hit his wife on the day before Thanksgiving, last November, with what looked like a piece of board. I reckon he was angry, or he would not have hit her. I heard Mrs. Roberts scream. I was in my yard, and I saw Mr. Roberts drag her from the north end of the house to the west of the porch, and he struck her just as she went on the porch. She was running at the time, and he was after her. She was screaming. That is what attracted by attention. He struck her awful hard. I heard the lick. He struck her once." (11) Because "a curtain pole, shivered about the middle, which had been identified by witness W. H. Henderson as a pole found in defendant's house, in an adjoining room from that in which the remains of deceased lay, behind a trunk, the day after the homicide, and which was offered in evidence by the state after the defendant had closed his testimony, was illegally admitted" in evidence. (12) Because the following testimony of Miss Lollie Roberts, who testified in rebuttal for the state, was illegally admitted: "My father (defendant) would call her (deceased) a 'bitch' and a 'bastard, ' and would always be constantly calling her some words like that. This was frequently during the time I lived at home (prior to 1903). He would call her a 'damn bastard' and a 'damn bitch.' I have heard him use such words ever since I can remember, to my mother. He would come in and be angry about something on the street, and come in cursing and drinking. For instance, if he would speak to her, and she did not hear him, he would curse her. If he would be talking to her, and she would be speaking to one of us, and not hear him, it would make him mad, and he would curse her then. When he came back from Georgia (in October, 1903), we heard our mother screaming in the side room, and I went in there and saw her on the floor, and he was standing over her with a knife in his hands. When he first saw me, he pushed me over her, and I pushed him back, and I started to help her up, and he came at me with the knife, and I pushed him again and the knife dropped, and when I pushed him again a second time he fell. She was on the floor, with her nose bleeding, and he had the knife in his hands, striking at her. I can't remember exactly what my mother said at the time. I just remember her saying, 'Please, Papa, don't kill me, ' and then I heard her call my name to come to her. This was when we lived on Catherine street, before we moved. When he was cursing her he would dare her to answer him back, and when she answered him I have heard him say be would beat her brains out with the poker that he had, or anything that he would have in his hands. He would beat her brains out if she would answer him. I have heard this on more than one occasion. He wouldn't always have the same thing in his hands, and it wouldn't be the same reason, but I have heard him threaten her life several times. He would dare her to go to my sister's house, and I have heard him tell her if she went over there he would kill her. On one occasion—I can't remember exactly when it was, but I remember the time—he was drinking, and I persuaded my mother to come into the front room, where I slept, and I tied the door to keep him out, and he beat on the door, and we couldn't get to sleep, for him, but we wasn't so afraid of him. He went to the little house where his shotgun was, and stood out in the door of the little house, and from there would go from the back door to the front door, and would dare any one to open the door. He said...