Smith v. State
| Citation | 46 S.E.2d 583,203 Ga. 317 |
| Decision Date | 12 February 1948 |
| Docket Number | 16069. |
| Parties | SMITH v. STATE. |
| Court | Supreme Court of Georgia |
Syllabus by the Court.
The verdict was amply supported by the evidence, and it was erroneous to overrule the motion for new trial as amended.
Ernest Smith and Sylvester Byrd were jointly indicted by the grand jury of Tattnall County for the murder of Fostell Smith (herein called the deceased). The State elected to try the defendants separately and placed Ernest Smith (herein called the defendant) on trial. The jury returned a verdict of guilty, without recommendation, and the defendant was sentenced to be electrocuted. The exception here is to the overruling of his motion for new trial as amended.
On the trial of the case the material part of the State's evidence was as follows:
Brad Smith, father of the deceased woman, testified: His daughter and the defendant had been living together for about six or eight years, and had three living children. They said they were married but they never had the license recorded. They had separated on several occasions. The deceased was living at Reidsville at the time of the homicide.
Katie York testified: On the night before the deceased was killed she was on the way to her home and she heard the deceased crying, and stopped to see what was the matter. The deceased was lying across the bed with her arm up and asked the witness to bandage her arm. The defendant was there, and the deceased said that he had broken her arm. The defendant told the deceased in the presence of the witness that he was going to kill her.
Sylvester Byrd testified on direct examination twice, and on cross-examination twice. A composite of his testimony tends to show the following: Prior to the date of the homicide he and the defendant worked for Segal Durrence, and both lived near Shiloe. On the Saturday evening of December 30, 1947 the date of the homicide, the defendant asked the witness to come to Reidsville with him, which the witness agreed to do. After they had gone to several places they went to the home of the deceased. The defendant knocked on the door, but was not admitted for five or ten minutes, and in a few minutes a man came out of the house barefooted, carrying his shoes in his hands. The man told the defendant 'not to think hard of him because he was there, that he wouldn't be there if she had not opened the door for him, if she hadn't give him cause he wouldn't have been there.' The defendant told him that he didn't blame him, 'but that woman was going to get hers that night.' The witness saw the deceased immediately after that and she was dressed in her night clothes. The defendant ran to the car and got his shotgun and went in the house, and the witness heard sounds of fighting, and heard the deceased begging the defendant not to hit her and not to kill her. The defendant drove the deceased out of the house to the car, and told the witness to put the children in the car. The defendant then drove the car down the road, stopping twice on the way to beat the deceased, once with his fist and the second time with the crank of the automobile, hitting her with it several times across her head. When they reached the house where the defendant lived, he stopped the car, and the witness took the children in the house. The deceased finally got possession of the crank that the defendant was beating her with and the defendant got out with the shotgun. The deceased began backing away, and they were arguing. The deceased asked the witness to stop the defendant and the witness started toward him, but he warned the witness not to bother him, and the witness went no further. The witness heard the gun fire, and the deceased fell and called to him. The witness and the defendant carried her in the house and put her on the bed. The witness told the defendant that he was going to leave and the defendant said that he could not go. The deceased started begging for a doctor and asking for water, but the defendant would not get a doctor or give her water, or let the witness do either. She cried and called for the witness during the night, but the defendant would not let him go to her. The witness did not know how long she lived. Early the next morning the defendant put the children in the car, and he and the witness went to Reidsville and stayed there all day. The witness was afraid of the defendant and did not tell any one what had happened. The next night the defendant forced the witness by threats to return with him to the house where the body of the deceased was. The defendant wrapped the body in an old quilt, wrapped a clothes wire around the quilt, and tied a wheel to it. They took the body in the car to the river and the defendant dropped the body in the river.
W. E. McDuffy, investigator with the Georgia Bureau of Investigation, testified: He investigated the alleged murder of Fostell Smith. He viewed the body of the deceased after it had been removed from the river. Her left eye was completely out, she had numerous contusions about the face which showed that she had been hit by some blunt instrument, and her large intestines were completely emptied from the lower part of her body. She had been wrapped in a blanket, fastened by wire to a wheel, and the witness identified each of these objects as exhibits. Sylvester Byrd gave them a detailed description of the events happening on the date of homicide, and the next day, and his testimony on the trial varied very little from the statement made to them.
The defendant introduced no testimony. His statement was as follows:
After the statement was made, the State introduced A. W. DuBose, who testified: He examined the body of the deceased and found two or three bruises on her head, her left eye knocked out, and a hole shot in her stomach. On investigation of the premises where the defendant lived they had found where a clothes wire had been cut, and the place where a wheel had apparently been removed from the grass. There was blood under the driver's seat, on the left foot mat, and on the running board of the defendant's car. Sylvester Byrd had made a statement of the homicide to them in the defendant's presence, and the defendant did not deny it.
Bill Eason testified: The deceased lived in a house right above him. A few days before the homicide he heard the defendant threaten to kill the deceased.
There was evidence that the defendant had married Catherine Towns about two years before the homicide.
Dan S. Cowart and C. L. Cowart, both of Glennville, for plaintiff in error.
R. L. Dawson, Sol. Gen., of Ludowici, Eugene Cook, Atty. Gen., and Wright Lipford, Asst. Atty. Gen., for defendant in error.
1. In ground 1 of the amended motion for new trial, it is contended that the court gave the principle of justifiable homicide as set forth in the Code, § 26-1011, and the principle of justifiable homicide as applied to mutual combat in § 26-1014, so as to make them applicable to the same statement of facts; the principles of law embraced in these sections are entirely separate and distinct, and the charge confused separate principles of law and was calculated to confuse and mislead the jury; the charge placed a greater burden on the defendant than the law requires; it qualified and limited the law of self-defense; the law of justifiable homicide as applied to mutual combat has no connection whatever with the law of justifiable homicide as set forth in § 26-1011.
This court has repeatedly held that it is reversible error for the court to charge §§ 26-1011, 26-1012 and 26-1014 in such manner as to confuse the jury in a proper application of the principles of law contained in § 26-1014. Franklin v State, 146 Ga. 40, 90 S.E. 480; Boatwright v. State, 162 Ga. 378, 379(4), 134 S.E. 91; Little v. State, 164 Ga. 509(5), 139 S.E. 37. But it is not error to fail to charge the law of justifiable homicide where such law is not applicable to the facts of the case. Miller v. State, 139 Ga. 716(4), 78 S.E. 181; Benjamin v. State, 150 Ga. 78(2), 102 S.E. 427; ...
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