Shaw v. State
| Decision Date | 15 November 1897 |
| Citation | 29 S.E. 477,102 Ga. 660 |
| Parties | SHAW v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. Where a person is indicted for the offense of wrecking a railroad train, and it is alleged in the indictment that the wrecking of such railroad train resulted in the death of a human being, inasmuch as the law denominates such a homicide murder, it is not error for the trial judge to give in charge to the jury the law defining the offense of murder as it is expressed in section 60 of the Penal Code.
2. Where, upon the trial of such a case, it was shown that the accused, of his own motion, undertook to, and did, point out the places at which certain tools were secreted with which the evidence indicated that the alleged wreck had been committed, it was not error for the trial judge to instruct the jury: "But if you believe from the evidence in this case and find there was any evidence upon that question that the defendant, without any information from anyone else pointed out the places where the tools were found, and they were the tools that were used in wrecking the train, that would be an inculpating circumstance that you might consider in this case with reference to his guilt, in connection with other evidence." (a) The use of the word "inculpating" in the connection in which it was employed did not amount to the expression or intimation of an opinion respecting the guilt or innocence of the accused.
3. Where alibi is relied upon as a defense, and the court, after charging fully upon the evidence necessary to support that defense, charged fully the law of reasonable doubt as to the general features of the case, and that such doubt extended to every material issue in the case, it is not cause for the reversal of a judgment denying a new trial that he failed, in the absence of a request so to do, to charge the special proposition that if the evidence offered in support of the defense of alibi, even though insufficient to establish that as a substantive defense, when taken in connection with all the other evidence in the case was, nevertheless, of such a character as to leave a reasonable doubt upon their minds as to the guilt of the accused, they should acquit.
4. Where, during the progress of a trial, only one witness was sought to be impeached by showing that he had committed perjury, it was not error for the court, in instructing the jury upon that branch of the case, to refer to such witness by name; nor did the court err because, in the course of such instructions, he read to the jury the definition of the offense of perjury.
5. While, upon the request of the accused, it is the duty of the court, as far as practicable, to have the witnesses separately examined, without the hearing each of the other it is no such abuse of discretion as will be cause for the reversal of a judgment denying a new trial that, at the request of the solicitor general, the trial judge permitted two of the witnesses for the state to remain in the court room to assist in the prosecution of the case.
6. The fact that, subsequently to the wrecking of the train, the accused told other persons where the tools with which the alleged wreck was committed were concealed, is admissible in evidence against him, even though at the time he refers his own knowledge upon the subject to information which he claimed to have derived from another; and particularly is this true where, disclaiming any personal knowledge of the whereabouts of such tools, he, nevertheless, undertook to and did, point out with exact precision the places where they were alleged to have been concealed by his informant, and where, according to his own version of the transaction, it is doubtful whether the information upon which he purported to speak and act was in fact imparted to him by his alleged informant. (a) Such declarations are admissible neither as confessions nor admissions of guilt, but as sayings from which the jury might or might not make inferences unfavorable to him, as they believed his knowledge of the facts was properly referable to his own information upon the subject or to information derived from others. (b) Nor was it error to admit in evidence a declaration made by the accused prior to the wreck for which he was indicted, while discussing with the witness another wreck which had occurred a short time before, to the effect that "he was going to have a wreck of his own some day."
7. Where it appeared that the defendant's wife was a passenger on the train which was wrecked, and that she was upon that train by his direction, it was not error to admit evidence that he had become enamored of another female, and had made to her a proposition of marriage, which, prior thereto, had been rejected. Such evidence, though of slight consequence, is admissible as bearing upon the motive which might have induced the accused to the commission of the act.
8. Where, upon the trial of one person jointly indicted with another for a felony, that other is introduced as a witness for the person on trial, it is competent to introduce as impeaching testimony the record of his conviction.
9. Where, upon the trial of one person for a criminal offense which involves in its commission any injury to the person or property of another, other persons, whose near relatives are offered as witnesses for the accused, have likewise been indicted for offenses involving injury to the property of the same person, it is competent to introduce in evidence the record of proceedings against such relatives for the purpose of showing the probable state of the witnesses' feelings relatively to the person alleged to have been injured by the accused, and this is true even though such person did not appear as prosecutor in the case.
10. The attack made upon the two jurors, who were alleged to have been disqualified because of bias, was completely answered by the counter showing on behalf of the state, and the discretion of the trial judge in holding them competent was not abused.
11. The evidence, though circumstantial, is ample to support the verdict.
12. Other than as above dealt with, there are no assignments upon errors of law alleged to have been committed at the trial which require consideration.
Error from superior court, Twiggs county; C. C. Smith, Judge.
Tom Shaw, convicted of murder, brings error. Affirmed.
Hardeman & Moore, for plaintiff in error.
Tom Eason, Sol. Gen.,
p>Page J. M. Terrell, Atty. Gen., J. H. Martin, and Hill, Harris & Birch, for the State.
1. The indictment upon which the plaintiff in error was tried contained two counts, in one of which he was charged with the offense of murder, and in the other with the offense of "wrecking a railroad train whereby death ensued." This indictment alleged, in substance, that the accused, conspiring with certain other persons whose names were stated therein, did, upon a given day, in a named county, remove from the track of a railroad a certain iron rail, with intent to wreck the train of a certain railroad company; that, in consequence of the removal of such rail, a train of the railroad company named was in fact wrecked, and that the death of a named person resulted therefrom.
Upon the trial of the case the trial judge, in connection with the special statute defining the particular offense of wrecking a train, read to the jury the sections of our Penal Code defining the offense of murder, and error is assigned upon this charge; it being alleged that the offense of murder, as defined generally in the Penal Code, was not in any way involved in the present case, and that the only effect which could have been produced by giving in charge to the jury these instructions was to inflame their minds against the accused, and thus prevent them from giving proper consideration to the real questions made in the case. The section of the Penal Code defining the particular offense of wrecking a railroad train (section 512) provides: Section 513 provides: "If death ensues to any person from the acts mentioned in the preceding section, the offender shall be guilty or murder." We are now to inquire whether, upon the trial of an indictment framed under this statute, the law of murder is so involved as to authorize an instruction to the jury upon the general phases of the law defining that offense. We do not think that there can be a question that this is true. Independently of the provisions of the sections of the Penal Code above referred to, we are fully persuaded that the act alleged to have been committed by the accused would have been murder under the general law. Section 67 of the Penal Code provides: "Involuntary manslaughter shall consist in the killing of a human being without any intention to do so, but in the commission of an unlawful act, or a lawful act, which probably might produce such a consequence, in an unlawful manner: provided, that where such involuntary killing shall happen in the commission of an unlawful act which, in its consequences, naturally tends...
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