Tillman v. State
| Decision Date | 14 March 1911 |
| Parties | TILLMAN v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Where upon the trial of one for murder, the accused introduced evidence regarding the character for violence of the person he was charged with killing, it was not error requiring a new trial that the court failed to instruct the jury upon the subject to which such evidence related, in the absence of a timely written request for such instructions.
Upon the trial of the accused for murder, the jury rendered the following verdict: "We, the jury, find the defendant guilty of murder and recommend the mercy of the court." The court charged the jury as follows: Held, there was no error in failing to charge the jury "on the subject of the effect of a verdict of guilty with a recommendation to mercy." Such failure did not mislead the jury into the belief that the rendition of the verdict returned by them would cause a punishment to be inflicted on the accused less than that of imprisonment in the penitentiary for life.
There was testimony of witnesses for defendant that the person with whose murder he was charged, at a time and place different from that at which the killing occurred, threatened the life of the defendant and assaulted him with a knife, by attempting to stab him therewith. The court instructed the jury upon the subject of voluntary manslaughter, and that of justifiable homicide, and in doing so charged the sections of the Code applicable to these subjects, and the mere failure of the court to refer to such threats and assault in his charge upon voluntary manslaughter and justifiable homicide is not cause for a new trial.
The evidence supported the verdict.
Error from Superior Court, Twiggs County; J. H. Martin, Judge.
Joe Tillman was convicted of murder, and he brings error. Affirmed.
M. J. Carswell, for plaintiff in error.
E. D. Graham, Sol. Gen., and H. A. Hall, Atty. Gen., for the State.
The plaintiff in error (hereinafter called the defendant) was convicted of the murder of Richard Phillips, and to the order of the court refusing him a new trial he excepted.
There was evidence in behalf of the state substantially as follows: The defendant came to the house of another person on the night of September 10, 1910. The house consisted of only one room, 10 feet wide and 15 feet long, and had only one window and one door. One witness testified the defendant came to the door, while others testified he came in the house. He took a pistol from a man whose name was Atticus Carswell, who was sometimes called Son Atticus, and said, "I am going to kill Jim." The deceased shut the door. The defendant ran to the window, and from the outside shot the deceased, who was in the house near the door. There was testimony that, when the defendant fired through the window, the deceased had his arms up and his hands on the door. After defendant fired two shots, the deceased went out of the house, and two other shots were heard on the outside. The deceased was found dead near the house, with a wound from a pistol ball which entered under his arm. A knife was found in his pocket unopened. A stream of blood was found from the door to the place where the body of the deceased was lying. The deceased made no effort to cut the defendant, nor did he in any way give the defendant any provocation to shoot him. The deceased did not have the reputation of being a violent man. In behalf of the defendant Emma Walker testified as follows: Her home was not the one at which the shooting occurred. Between sunset and dark, "on the same day of the shooting, shortly before the shooting" she and the defendant, with others, were sitting on the porch at the house. The deceased "ran up the steps and stabbed at" the defendant. The deceased cursed the defendant and threatened to kill him. Another witness gave substantially the same testimony. There was testimony regarding the character of the deceased for violence, and that he had a "bad reputation for violence."
The defendant made the following statement: "I went over there to Walker's house. We was sitting down on the porch talking. Emma hollowed to me, 'Look out, Joe.' I looked behind me, and Dick Phillips was stabbing at me with a knife. I jumped down off of the porch, and asked him what was the matter with him. He said, 'I am going to kill you you God damned son of a bitch, you.' I said, He said, 'You know what I want to kill you for, about this woman.' I said, 'What woman?' He said, 'Emma.' I said, 'Emma is not none of yours, is she?' He said, 'You heard what I said; I will kill you before the sun rises in the morning.' I said, 'Dick, if you want to fight me that bad, put down your knife and come out here, and we will fight it out.' He started with his knife in his hand. Emma grabbed him, and said, 'Dick, I wouldn't do that.' I said, 'Emma, hand me my hat.' He taken and kicked it out on the porch to me. I broke and run down to his brother Joe's house, to tell him about the fuss me and Dick had. I goes on up to the commissary, and stayed up there, and decided to go home and put on my overalls and go up to Will Harris' house. I goes on and gets about this house, where these boys were shooting dice. George said, 'Who is that?' I said, 'It is me.' He said, 'Come in and take a part with us in the dice game.' I said, 'No, I will go and change overalls.' He said, 'No; come on in.' I walked in, and Dick shut the door behind me. He said, 'You God damned son of a bitch, I told you I was going to kill you.' I broke and run around the crowd, and said, 'Boys, don't let Dick cut me, for I haven't done anything to him.' By me running through the crowd and around the crowd to keep him from cutting me, I run around Son Atticus and seed his gun in his pocket, and I snatched it, and broke to the window, and jumped out of the window. By the widow being on the side of the hill of the railroad, I fell. He was reaching...
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