Strickland v. State
| Decision Date | 11 December 1928 |
| Docket Number | 6836. |
| Parties | STRICKLAND v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Where the state introduced proof of an inculpatory statement of the defendant, from which his participation in a felonious homicide, for which he was indicted, was deducible, the evidence against him was not wholly circumstantial, and the trial judge did not err in failing to give in charge to the jury the definition of circumstantial evidence embraced in the Penal Code,§ 1009, and in failing, in connection therewith, to charge the weight to be given to circumstantial evidence as defined in section 1010.
The defense of alibi was not involved under the facts of this case, and the court did not err in failing to charge the law applicable to such defense.
The written dying declaration of the deceased, to the effect that he knew that one of two officers, who were pursuing him to arrest him and were about 20 steps behind him, shot him, was properly admitted over objections that the declaration showed that the deceased did not know who killed him, that a part of the statement was irrelevant, and that such declaration would not be admissible against the defendant, unless the other officer was indicted and on trial; the state showing by aliunde evidence that the defendant was the officer who shot and killed the deceased.
On a trial for murder, dying declarations are admissible to prove any relevant facts embraced in the res gestae of the killing and conversations and conduct which are part of the res gestae may be admitted as part of the dying declaration.
The court did not err in giving the instruction to the jury dealt with in the fifth division of the opinion.
A dying declaration reduced to writing and signed by the deceased and introduced in evidence by the state, should not have been sent by the court to the jury for their consideration while deliberating on the verdict which they should render, over the objection of the defendant, and permitting such declaration to go to the jury over the objection of the defendant requires the grant of a new trial.
Where a witness was sworn and examined for the defendant, and on his examination in chief, in answer to a question if he knew anything about the defendant being able to run, he answered that he never saw him run any, it was improper for counsel representing the state to propound to the witness on his cross-examination the question, "He usually shoots them down instead of running them down?" On motion of counsel for the defendant for a mistrial because of the question thus propounded, the court should have instructed the jury that the question propounded was improper, and that they should not consider the implication contained in the question propounded. An instruction that they need not consider the question at all and that the witness need not answer the same was too mild, and did not sufficiently remove the harm done by the question.
Error from Superior Court, Hall County; I. H. Sutton, Judge.
Homer Strickland was convicted of murder, with a recommendation and he brings error. Reversed.
G. F Kelley, Wm. J. Phillips, and B. P. Gaillard, Jr., all of Gainesville, for plaintiff in error.
Robt. McMillan, Sol. Gen., of Clarkesville, E. D. Kenyon, of Gainesville, and Geo. M. Napier, Atty. Gen., and T. R. Gress, Asst. Atty. Gen., for the State.
The defendant was indicted for murder and was convicted, with a recommendation. He moved for a new trial upon the formal grounds, and by amendment added certain special grounds, which will sufficiently appear in this opinion.
1. The defendant insists that the court erred in failing to give in charge to the jury the definition of circumstantial evidence embraced in the Penal Code, § 1009, and in failing, in connection therewith, to give in charge to the jury the weight to be given to circumstantial evidence as defined in section 1010. On the trial of a criminal case, where a conviction depends solely upon circumstantial evidence, it is the duty of the judge, whether so requested or not, to give in charge to the jury the principles of law by which the weight of the circumstances is to be determined, and under what circumstances a conviction on circumstantial evidence is warranted. Hamilton v. State, 96 Ga. 301, 22 S.E. 528; Jones v. State, 105 Ga. 649, 31 S.E. 574; Smith v. State, 125 Ga. 296, 54 S.E. 127; Weaver v. State, 135 Ga. 317, 320, 69 S.E. 488.
Where there is both direct and circumstantial evidence of guilt, the failure of the trial judge to charge on circumstantial evidence is not reversible error, in the absence of a timely written request. Smith v. State, supra; Brannon v. State, 140 Ga. 788, 80 S.E. 7; Mitchell v. State, 151 Ga. 450 (2), 107 S.E. 43; Collier v. State, 154 Ga. 68, 113 S.E. 213. So the question arises, Does the conviction of the defendant rest entirely upon circumstantial evidence? One view of the evidence makes substantially this case:
The defendant and one Reed were deputy sheriffs. They had a warrant for the arrest of the deceased to answer a misdemeanor charge. These officers went to the home of one Pirkle for the purpose of arresting the deceased. They found him there. One of these officers called to him. The deceased said, "What do you want?" The defendant told him that he had a warrant for him. The deceased then wanted to know what it was about, and the defendant said that it was something about whisky. The deceased told the defendant that he wanted to see the warrant. Reed had the warrant in his pocket and handed it to the defendant. The defendant told the deceased to get into his automobile and go to town. The deceased said, "No; wait until Monday." The defendant told the deceased again to get in and go to town and fix it up. The defendant then got out of his automobile to arrest the deceased. The deceased ran. The defendant told Reed to go around the house and head him off. Reed went around the house for that purpose. The defendant then got into his automobile and went in another direction to arrest the deceased. When Reed returned he did not see the defendant, but saw the automobile standing down the road in a deep cut. Reed went down there to see what happened. He saw where somebody had crawled up the bank. He stepped out into the edge of the woods. About that time he heard a shot; saw a little smoke on the rise of the hill close to some rocks. He heard only one shot. After he saw the smoke he went to a briar patch and stopped there; saw the defendant coming back down through the woods from the direction in which he heard the shot. The defendant had a 44-caliber Smith & Wesson pistol in his hand. When he got back close to Reed he put it in its scabbard. He asked Reed why he did not catch the deceased. Reed replied that he was not going to catch the deceased or anybody else with his broken arm. The defendant then said that he "tried to cut the damn scaper's legs off," and that the last he saw of the deceased "he was going like a bat out of Californey." The deceased was found in the direction from which this shot was heard. He was found to be shot in the back, the ball passing through his body and out in front. The physician who attended the deceased at the hospital testified that in his opinion the wound was a bullet wound, and that he would say it was made with a 38 or 44 bullet.
Under these facts, was the evidence against the defendant solely circumstantial? Confessions of guilt may, according to their nature, be direct or circumstantial evidence. If they be of facts directly admitting the commission of the crime charged, they are direct evidence; but, if the fact confessed be only matter from which an inference of participation arises, they are circumstantial only. An admission of participation in a shooting, which results in the death of another, is to be taken as direct, and not mere circumstantial evidence of guilt. Eberhardt v. State, 47 Ga. 598(8); Perry v. State, 110 Ga. 234(3), 238, 36 S.E. 781; Wilburn v. State, 141 Ga. 510(9), 513, 81 S.E. 444; Greer v. State, 159 Ga. 85(6), 94, 125 S.E. 52. Where the state introduced the dying declaration of the deceased, in which he stated that either the defendant or another officer, both of whom were pursuing and attempting to arrest him, shot him, and proved that the defendant, returning from the place where shots were heard, and having in his hand his pistol, stated that he had tried to cut off the legs of the deceased, who was trying to escape, and that he guessed he hit him, the deceased being found shortly afterwards shot in the back, the bullet passing through and out of his body, a conviction of the defendant does not depend entirely upon circumstantial evidence, and it was not erroneous for the court to omit an instruction on the law of circumstantial evidence, in the absence of a proper request. Toliver v. State, 138 Ga. 138, 74 S.E. 1000; McElroy v. State, 125 Ga. 37, 53 S.E. 759.
2. The defendant insists that the court erred in failing to give in charge to the jury the law of alibi as defined in the Penal Code, § 1018. We do not think that the defense of alibi was involved under the facts appearing in the record, and the court did not err in not giving in charge the law relating to that defense.
3. The state offered in evidence a writing signed by the deceased and containing his dying declarations, as follows: ...
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Strickland v. State, (No. 6836.)
...167 Ga. 452145 S.E. 879STRICKLAND.v.STATE.(No. 6836.)Supreme Court of Georgia.Dec. 11, 1928.(Syllabus by the Court.)[145 S.E. 880] Error from Superior Court, Hall County; I. H. Sutton, Judge. Homer Strickland was convicted of murder, with a recommendation, and he brings error. Reversed. G. ......