Thomas v. State

• Decision Date: 12 November 1907
• Citation: 59 S.E. 246,129 Ga. 419
• Parties: THOMAS. v. STATE.
• Court: Georgia Supreme Court

59 S.E. 246

129 Ga. 419

THOMAS.

v.STATE.

Supreme Court of Georgia.

Nov. 12, 1907.

1. Homicide—Trial—Instructions — Sufficiency.

The charge was adapted to the evidence, and impartially stated the contentious of both the state and the accused.

2. Criminal Law — Trial — Reception of Evidence—Discretion of Court.

"Where the court provisionally admits evidence on the promise of the Solicitor General that he will subsequently connect the same and show its relevancy, it is not incumbent on the judge, of his own motion, to determine whether such promise has been kept and to exclude the testimony, without a request to that effect by the defendant."

[Ed. Note.—For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1612.]

3. Same—Argument of Counsel.

The state's counsel should not refer to the prevalence of crime in other parts of the county in his argument. The remarks here complained of were irrelevant, but afford no ground for a new trial, as no objection was made to the statement, and no ruling of the court was invoked.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1668; vol. 15, Criminal Law, § 2645.]

4. Same—Instructions—Reasonable Doubt.

An explicit and comprehensive charge on the subject of reasonable doubt, wherein the jury are instructed, in effect, that if, after considering the entire case, they should have a reasonable doubt of the defendant's guilt, it is their duty to acquit, sufficiently informs the jury that the burden is on the state to prove the defendant's guilt.

(a) A statement in such a charge that the reasonable doubt of the law is one that grows out of the evidence is not erroneous because of the exclusion of any inference that such a doubt may arise from the want of evidence, or conflict in the evidence.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 1847, 1921.]

5. Same—Flight.

There being evidence of flight to avoid arrest, it was not error to charge the jury: "Flight is a circumstance when it is proven; and the jury must consider that just like they would any other fact, and determine what was the cause of the flight. Because a man fled from the scene of the homicide is not a conclusive reason that he is guilty under the law; but when flight is proven the jury must take that circumstance of flight, and consider it under the same rules that they would consider any other piece of evidence in the case. In considering it, determine why he fled, if it has been proven that he fled. Was it from conscious guilt in shooting the man, or was it from fear, or was it from some other cause, some cause other than conscious guilt of having committed a crime? That is for you to determine; and, when you have determined that, then you will give to that circumstance, if it has been proven, of flight, just the weight you think it ought to have in determining this case. The mere circumstance that the man fled, when taken by itself, is not sufficient to convict; but, added to other sufficient circumstances, the jury will give it just such weight, when it has been proven, as they think it ought tohave and bear in relation to the other circumstances which have been proven in the case."

[Ed. Note.—For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1761.]

6. Same—Punishment.

A charge, in a capital case, that: "It is within the province and power of the jury, if they should find the defendant guilty, and if they believe that it ought to be so done, or if they wish it so done, to recommend that he be punished by imprisonment in the penitentiary for life. There is no rule of law by which you are to be guided in making a recommendation of that character. It is entirely a matter for your determination"—is not open to the criticism that it was calculated to prejudice the jury and prevent them from recommending that the prisoner be punished by imprisonment for life.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1935.]

7. Same — New Trial — Newly Discovered Evidence.

A new trial will not be granted because of alleged newly discovered evidence, cumulative and impeaching in character, and especially so where neither movant nor his counsel submit affidavits showing their ignorance of such testimony at the time of trial.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 15, Criminal Law, § 2328.]

(Syllabus by the Court.)

Error from Superior Court, Muscogee County; W. A. Little, Judge.

Bud Thomas was convicted of murder without a recommendation, and he brings error. Affirmed.

W. H. McCrory and H. V. Hargett, for plaintiff in error.

S. P. Gilbert, Sol. Gen., and Jno. C. Hart, Atty. Gen., for the State.

EVANS, P. J. Bud Thomas was indicted for the murder of Prince Hollis, was convicted without a recommendation, made a motion for a new trial, which was refused, and he brings error to this court

The case as made out by the state was that, on the night previous to the homicide, the door of the house where the deceased lived had been broken down. The next morning the deceased approached one Reese and accused him of breaking it down. The accused then interposed, and said to Prince Hollis: "You say that Henry Reese broke into your house last night?" The deceased replied: "Yes." The accused then said: "It is a damn lie. It was not him." Thereupon the deceased said: "You are a lie. It was him." The accused instantly drew his pistol from his pocket and presented it at the deceased, who walked off the little bridge, where he was standing at the time of this conversation. The accused told him if he did not come back he would kill him. The deceased turned around in the direction of the store door as if to go into the store. The accused then told him again that if he walked off he would shoot him, and presented his pistol at the deceased, who then called to his son to bring him a gun to defend himself. Henry Reese then caught the accused by the arm, and when he released his hold the accused fired at the deceased, inflicting a mortal wound As soon as the accused fired the shot he ran away, and while running the son of the deceased fired at him. The sheriff, though he made every attempt to find the accused, was unable to secure his arrest for several months after the homicide. The defendant, in his statement, admitted the homicide, but contended that he was justifiable. He contended that when the deceased charged Reese with breaking into his house he said to the deceased that Reese did not break down the door, but that Reese and the deceased's son had a fuss out in the road, and the son cut Reese; that Reese pursued him; and that his son broke down the door. Thereupon the deceased called the accused a "God damn liar, " and said he would kill him, and, before the accused could move, the deceased caught him in the collar with his hand, struck at him with a knife, and cut his coat and shirt, and, as the deceased attempted to raise his hand the second time, the accused jerked loose from his grasp and started to run, being closely pursued by the deceased. Deceased was pressing him so hard that he drew his pistol and fired the fatal shot.

1. The court, in a very full and elaborate charge, instructed the jury on the law of murder, voluntary manslaughter, and justifiable homicide. In his motion for a new trial, the accused complains that the court unduly stressed and emphasized the contentions of the state, and omitted to charge a theory of the defense as presented by the evidence. We have carefully examined both the charge and the evidence, and we do not think that the charge is open to either of these criticisms. There is no complaint that the court committed any error in defining the various grades of homicide, in stating the law of self-defense or defense of one's person.

2. During the course of the cross-examination of one of the defendant's witnesses, it was elicited that, shortly after the homicide, he had gone to Birmingham, and the Solicitor General was interrogating him as to the cause of his visit, and asked him if he had not been before the recorder since his return, and the witness answered that he had. Objection was made by the defendant's counsel to the evidence, on the ground of irrelevancy, whereupon the Solicitor General stated that later on he would show its relevancy by connecting it with other evidence, which he failed to do. On this statement of the Solicitor General, the court provisionally allowed the testimony to...