Tanner v. State
| Decision Date | 14 October 1925 |
| Docket Number | 4964. |
| Citation | 130 S.E. 64,161 Ga. 193 |
| Parties | TANNER v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
The declarations or conduct of one joint conspirator, made after the enterprise is ended, are inadmissible except against the person making them, and as against others must be rejected as narrative merely of past occurrences.
The court erred in admitting evidence of the declarations of a defendant, jointly indicted with the accused on trial, which were made subsequently to the completion of the criminal enterprise; and the error was not cured by ruling out the evidence after it had been before the jury for a considerable time, when in ruling it out the court failed to instruct the jury distinctly that they should disregard the evidence in reaching a verdict in the case.
The testimony as to an inquiry made by a defendant, jointly indicted with the one on trial, as to certain insurance policies upon the life of the decedent, should have been excluded upon motion duly made.
The court erred in admitting the testimony of a witness for the state, that he heard a person who was jointly indicted with the accused on trial say that he had a large amount of insurance on the life of the decedent, and that it was payable to a certain bank; this declaration having been made after the homicide for which the movant was indicted. The evidence was not admissible generally, and was not admissible to prove a conspiracy between the defendants jointly indicted, as against the one actually on trial.
Though generally a party cannot impeach his own witness, he may contradict him by proving the facts to be otherwise than as the witness has stated them in evidence. Skipper v State, 59 Ga. 64; Hollingsworth v. State, 79 Ga. 605, 4 S.E. 560.
The evidence of a witness that, upon a certain trip to a county other than the one in which the decedent was killed, he went with a party to the lands of a person named, where they picked up certain samples of ores, and that all came back together, and that the decedent and the person jointly indicted with the plaintiff in error and other named persons took certain of the ores referred to, was irrelevant and immaterial, but harmless.
The court did not err in admitting, over objection, evidence that, some time prior to the homicide with which the movant is charged, the defendant jointly indicted with him was gathering up samples of a certain ore, similar in character to deposits which this joint defendant claimed to be on certain lands of his where the homicide took place.
Certain letters were introduced in evidence, which purport to have been written by the defendant jointly indicted with the plaintiff in error. They were objected to upon the ground that they were irrelevant, and that the execution of the letters had not been proved. While there was no direct proof of the execution of the letters, circumstances were proved from which the jury could find that the person whose letters these purport to be had written them, for one of the witnesses testified that he exhibited certain reports from the state geologist, to whom the letters were addressed which seemed to have come to him in response to the letters.
The court did not err in admitting in evidence a target perforated with shot discharged from the same gun by the discharge from which the decedent had been killed, although the target had been experimented with in the absence of the defendant on trial, and without his having notice of it; a witness for the state testifying, in reference to the target that it was at certain stated distances from the muzzle of the gun when the shots were fired at it. It was competent to introduce this evidence to show how much or how little the shot from this gun would, at certain stated distances "scatter," as evidence upon this subject would illustrate the question as to how close the muzzle of the gun was to the head of the decedent at the time he was killed; the defendant having stated that he was a certain distance, and the state insisting that he was much closer to the man who was slain.
The court did not err in admitting the evidence given by a witness for the state that two or three months before the date of the homicide the defendant said to him, in the course of a conversation, This evidence was material, and tended to illustrate the question as to whether a conspiracy to commit the crime charged existed.
The court did not err in charging the jury as follows: This stated a correct principle of law, and was authorized by the evidence. This also covers the exception to the charge made in the twenty-third ground of the motion for new trial, in which it is contended that there was no evidence to authorize a charge upon the subject of conspiracy.
The evidence of a named witness for the state, tending to show that the codefendant of the plaintiff in error had an interest in certain insurance policies upon the life of the decedent, was not, in view of all the issues involved in this case, irrelevant.
The court did not err in refusing to charge the jury as follows: "The mere presence and participation in the general transaction in which a homicide is committed is not conclusive evidence of consent and concurrence in the perpetration of a crime by a defendant sought to be held responsible for the homicide, as aiding and abetting the actual perpetrator, unless such defendant participated in the felonious design of the person killing." While the requested charge states a proposition that is true in law and in fact, it was too vague and general, in view of the other evidence in the case, to require the court to give it.
In view of what is ruled above, it is unnecessary to consider the ground asking for a new trial upon the ground of newly discovered evidence.
Error from Superior Court, Johnson County; R. Earl Camp, Judge.
J. J. Tanner was convicted of murder, and he brings error. Reversed.
Evans & Evans, of Sandersville, and C. S. Claxton, of Wrightsville, for plaintiff in error,
Fred Kea, Sol. Gen., of Dublin, J. L. Kent and W. C. Brinson, both of Wrightsville, E. L. Stephens, of Dublin, J. J. Harris, of Sandersville, Geo. M. Napier, Atty. Gen., and T. R. Gress, Asst. Atty. Gen., for the State.
At the March term, 1925, the grand jury of Johnson county returned an indictment against J. J. Tanner and C. G. Rawlings charging them with the offense of murder, for that they did, on the 17th day of February, 1925, kill and murder G. A. Tarbutton by shooting him. The defendant, Tanner, was put upon trial at the March term, 1925, of the superior court of Johnson county, and the jury trying the case returned a verdict of guilty with a...
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