Thurman v. State

• Decision Date: 14 May 1914
• Docket Number: (No. 5450.)
• Court: Georgia Court of Appeals
• Parties: THURMAN et al. v. STATE.

(14 Ga.App. 543)

81 S.E. 796

THURMAN et al.

v.STATE.

(No. 5450.)

Court of Appeals of Georgia.

May 14, 1914.

(Syllabus by the Court.)

1. Homicide (§ 110*)—Threats—Communication— Materiality.

Generally it is immaterial how a threat may be communicated. The question of importance is: Was it actually received by the party against whom it is directed?

[Ed. Note.—For other cases, see Homicide, Cent. Dig. §§ 158-103; Dec. Dig. § 116.*].

2. Criminal Law (§ 672*)—Reception of Evidence—Failure to Exclude.

Where evidence tending to show a conspiracy was admitted by the court, over objection as' to its relevancy, under an agreement of the state's attorney to connect it with other evidence or establish such relevancy later, it was not error for the judge to fail afterwards to exclude the testimony, though there was a failure to connect it or show its relevancy as promised; there being no subsequent motion to exclude it for this reason. Lindsay v. State, 138 Ga. 818 (7), 823, 76 S. E. 369; Stone v. State, 118 Ga. 705 (9), 716, 45 S. E. 630, 98 Am. St. Rep. 145.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 1611, 1612; Dec. Dig. § 672.*]

3. Criminal Law (§ 407*)—Evidence—Declaration of Bystander.

Evidence as to a declaration of a bystander, accusing one then present of the commission of a criminal act, which declaration the accused person hears, but fails to deny or explain, may tend to establish his guilt, and is admissible on his trial for such offense. Penal Code, 1910, § 1029..

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 898-902, 949, 968, 970, 971; Dec. Dig. § 407.*]

4. Criminal Law (§ 822*)—New Trial—Instructions.

An excerpt from the charge of the trial judge which appears to be involved or confused will not demand a new trial, where the charge as a whole removes the confusion and presents with sufficient clearness the point touched upon in the portion objected to.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 1990, 1991, 1994, 1995, 3158; Dec. Dig. § 822.*]

5. Criminal Law (§ 824*) — Instruction — Failure to Request.

It was not reversible error for the trial judge to omit instruction to the jury as to what would constitute "other equivalent circumstances" sufficient to justify excitement of passion, and thereby reduce a crime from murder to manslaughter, though it was permissible for him to give the proper definition of the phrase, as indicated in Murray v. State, 85 Ga. 378, 11 S. E. 655. Especially is this true in the absence of an appropriate timely request to define to the jury the term "other equivalent circumstances." The point now raised was not presented in the Murray Case, supra, as there the complaint was that the definition given of the term "other equivalent circumstances" too greatly restricted the jury in their determination of the circumstances which might authorize an irresistible impulse of passion. The decision in the Mur ray Case was directed only to the facts of that particular case.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 1996-2004; Dec. Dig. § 824.*]

6. Criminal Law (§§ 778, 1173*)—Homicide (§ 145*)—Gbound for Reversal—Instructions—Evidence — Presumptions — Presumption of Law.

It is well settled that the failure of the trial judge to charge the jury in a criminal case to the effect that the defendant entered upon his trial with the presumption of innocence in his favor, and that this presumption of innocence remains with him until overcome by proof satisfying the jury of his guilt beyond a reasonable doubt, is reversible error. Coffin v. U. S., 156 U. S. 432, 15 Sup". Ct. 394. 39 L. Ed. 481; Reddick v. State, 11 Ga. App. 150(4), 74 S. E. 901; Butts v. State, 13 Ga. App. 274, 79 S. E. 87.

(a) There are many "presumptions of law" which might arise in the trial of a criminal case —as, for instance, the presumption of an intent to kill, from the deliberate use of a deadly weapon; the presumption of malice, arising from the killing; the presumption that an unlawful act was criminally intended until the contrary appears; and the presumption that the accused is innocent, until his guilt is proved beyond a reasonable doubt.

(b) A charge in these words: "Notwithstanding this indictment, each of these defendants enters into the trial of this case with the presumption of law in his favor, and this presumption follows each one of the defendants until the state, to a reasonable and moral certainty and beyond a reasonable doubt, convinces you of the guilt of the defendants, in the event you convict any or all of these defendants"—did not present to the jury the law as to the presumption of innocence with the clearness the defendants were entitled to have this doctrine presented, and may have...