Taylor v. State

• Decision Date: 25 July 1899
• Citation: 34 S.E. 2,108 Ga. 384
• Parties: TAYLOR v. STATE. PERRY v. SAME.
• Court: Georgia Supreme Court

34 S.E. 2

108 Ga. 384

TAYLOR v. STATE.

PERRY v. SAME.

Supreme Court of Georgia

July 25, 1899

Syllabus by the Court.

1. A chain gang located in a county of this state, in which convicts whose offenses were misdemeanors are confined and worked under the direction and control of a guard, is presumably a lawfully established county chain gang, and must be so regarded until the contrary is made to appear.

2. Though in a joint trial of two persons for murder the statement of one of them to the jury may be such as to call for a charge upon the law of voluntary manslaughter, failure to instruct the jury thereon is not, in the absence of a proper request to charge on this subject, cause for granting him a new trial, if there is nothing in the sworn evidence which would warrant a verdict convicting him of this grade of homicide.

3. A homicide having been committed with a weapon hastily "grabbed up" by the slayer, who had not previously prepared it or placed it where it lay when he seized it, and there being, on the trial of himself and another for the murder of the deceased, nothing to show the nature of this weapon, except that it was "a piece of wood," and caused the death, the conclusion did not necessarily result that it was a weapon likely to produce death, or that the use of it established beyond controversy an actual intention to kill.

4. If upon such a trial, the statement by one of the accused to the jury warranted a finding of such a state of facts as that above indicated, and he, admitting that he committed the homicide, and not asking for an acquittal, contended only that his offense should be graded, appropriate written requests to charge, embracing instructions upon the law of involuntary manslaughter, though based upon the statement only, should not have been refused.

5. When, upon such a trial, the other accused person stood squarely on his plea of not guilty, and both joined in presenting such requests to charge, a refusal to give the same entitled not only the one admitting that he committed the homicide to a new trial, but also the one denying any participation therein, if the only theory upon which he could lawfully have been convicted was that there was a conspiracy between the other and himself to murder the deceased. This is so because such a theory would necessarily be inconsistent with the actual slayer's guilt of involuntary manslaughter only.

Error from superior court, Wilkes county; Seaborn Reese, Judge.

Fred Perry and Will Taylor were convicted of murder, and bring error. Reversed.

Horace M. Holden and Alex. W. Stephens, for plaintiffs in error.

R. H Lewis, Sol. Gen., Harrison & Bryan, and J. M. Terrell, Atty Gen., for the State.

LUMPKIN P.J.

The plaintiffs in error, Will Taylor and Fred Perry, were jointly indicted and jointly tried for the murder of Jep Dennard. Both were convicted. Neither moved for a new trial, but each presented to the judge a separate bill of exceptions, which under a writ of mandamus from this court, was duly certified. 33 S.E. 917. The defenses set up by the accused on their trial were essentially different. Taylor admitted that he committed the homicide, and did not ask for an acquittal. He "only contended that a verdict of voluntary or involuntary manslaughter as to him should be rendered." On the other hand, Perry strenuously denied any connection whatever with the killing of Dennard, and earnestly insisted that he was not guilty. The material facts are as follows: Taylor, Perry, and several others were members of a chain gang of which Dennard was a guard. All of the convicts occupied one room of a house, and Dennard another. Taylor and Perry, who were not confined to the chain, entered the latter room, and immediately thereafter a struggle ensued, in which Dennard received a blow on the head with a weapon of some kind. As results thereof, he soon lost consciousness, and died the next day. The evidence discloses nothing as to the nature of the instrument with which the mortal wound was inflicted, except that it caused the death of Dennard. The indictment describes it as "a certain weapon." The only mention of it at the trial came from Taylor. He called it "a piece of wood." He stated to the jury that, when he entered Dennard's room, the latter "got after" him about cooking an extra meal for the convicts; and he then proceeded as follows: "He [meaning Dennard] asked me who gave me authority to cook supper for them. I told him they didn't have any bread for dinner. He said, 'I am going to give you hell about it,' and jumped up at me. I reached down, and grabbed up a piece of wood on the side of the wood pile. I took it, and hit him, not intending to kill him. It was my intention to make my escape. We ran out of the room. He came to the door. We all gathered around him. Fred, he asked me to take him to the room. I said no, I wouldn't do it; he might kill me. Stud Baker was the man that helped him carry him to the room. I told the boys to make haste and do what they were going to do. We went about 150 yards. Will Moore cut my chain, and I cut his loose, and he cut several more, and we made our escape. It was not my intention to kill him. It was my intention to make my escape. He jumped up. I didn't know what he was going to do, --whether he was going to beat me half to death or not. I have nothing further to say about it." The state introduced, in rebuttal of Taylor's statement, his "testimony taken down on the commitment trial, and also evidence of a declaration he had made at the time of his arrest, that Fred Perry did the killing." This declaration was, of course, not admissible against Perry for any purpose, and the evidence which was admissible against him was exceedingly weak and unsatisfactory. It did not show actual participation by him in the homicide, and the only theory upon which he could have been convicted was that the killing was done in pursuance of a conspiracy between Taylor and himself to murder Dennard. In each bill of exceptions it is alleged that both of the accused requested the judge to give in charge to the jury the following written requests, and error is assigned upon his refusal so to do: (1) "If you believe, either from the evidence or from the statements of defendants, that Dennard was endeavoring to inflict corporal punishment upon the defendant Taylor, and to prevent this Taylor struck him the blow that caused his death, then, in order to justify you in finding Taylor guilty of murder, the evidence must satisfy you that Dennard had the right to inflict the punishment, and the burden is on the state to show that he had such right. In this connection, if you believe that, at the time of the killing, Taylor was a member of a chain gang of which Dennard was a guard, and that Dennard, as such guard, endeavored to whip him, or inflict corporal punishment, before you can find that such attempted punishment was lawful you must believe from the evidence that the chain gang was a legal one; and the burden is on the state to prove it was." (2) "If from the evidence, or from the prisoners' statements, you should believe that the person who struck Dennard did not in fact intend to kill him, then, before you can infer such intent from the nature of the weapon used, the evidence must satisfy you that it was a deadly weapon, and one likely to produce death; and it would be the duty of the state to prove that it was a weapon likely to produce death. The bare fact that the use of a weapon produced death in a single instance would not, in the absence of all other evidence as to the character of such weapon, justify you in concluding that it was a deadly weapon, and one likely to produce death. If the evidence should fail to show that the weapon used was one in its nature calculated to produce death, and if you further believe that the...