Vere v. State

• Decision Date: 14 June 1932
• Docket Number: No. 22259.,22259.
• Citation: 45 Ga.App. 330,164 S.E. 485
• Parties: DE VERE . v. STATE.
• Court: Georgia Court of Appeals

45 Ga.App. 330

164 S.E. 485

DE VERE .

v.STATE.

No. 22259.

Court of Appeals of Georgia,

Division No. 1.

June 14, 1932.

Syllabus by the Court.

1. "Where every essential ingredient of the offense is set forth with sufficient clearness to enable the defendant to prepare his defense, and the jury clearly to understand the nature of the offense, the accusation is not demurrable."

2. The evidence supports the verdict of voluntary manslaughter.

3. Such special grounds assigning error upon the admission of evidence as are in proper form for consideration by this court disclose no reversible error.

4. "The inhibition against an expression or intimation of opinion by the trial judge as to the facts of the case does not extend to colloquies between the judge and counsel as to the admissibility of certain evidence especially where the judge is ruling upon a point made by counsel for the accused. Furthermore, if the judge, under such circumstances, should make a statement prejudicial to the accused, this court could not consider any complaint thereof, in the absence of a timely motion for a mistrial based thereon."

5. "The discretion of a trial judge who passes upon the alleged prejudice and bias of a juror, from conflicting evidence on a mo-tion for new trial, will not be interfered with unless it is manifestly abused."

6. Ground 9, complaining that a bailiff "made communication with the jury without permission of the court, " and "permitted one of the State's witnesses * * * to go down to the basement * * * while the jury was there, " was properly overruled.

7. Where it is contended that a juror who served in a case was disqualified because of relationship, and the evidence upon that issue is conflicting, the judge is the trior, and his finding conclusively settles the matter.

Error from Superior Court, Ware County; M. D. Dickerson, Judge.

W. C. De Vere was convicted of voluntary manslaughter, his motion for a new trial was overruled, and he brings error.

Affirmed.

Herbert W. Wilson, of Waycross, for plaintiff in error.

A. B. Spence, Sol. Gen., Blalock & Blalock, and Jerome Crawley, all of Waycross, for the State.

LUKE, J.

W. C. De Vere was charged with murder, and was convicted of voluntary manslaughter. The first question presented for decision is whether the court erred in overruling a special demurrer to the indictment. The other matters to be passed upon are raised by the exception to the judgment overruling the motion for a new trial.

Omitting some of its formal parts, the indictment charges that, on, July 22, 1931, in Ware county, Ga., W. C. De Vere "did kill and murder by shoving said J. H. Johnson from an automobile running at a rapid rate of speed and by running and did run and operate said automobile in a manner and way so that said J. H. Johnson was struck and jambed against a concrete post, and did hit, strike, and beat said J. H. Johnson with a certain pistol and a weapon to the grand jury unknown, and thereby giving to the said J. H. Johnson then and there a mortal wound, of which said mortal wound the said J. H. Johnson died."

The gist of the demurrer to the indictment is as follows:

1. "Said indictment fails to advise this defendant respecting the particular allegations therein, the State contends * * * that he did kill and murder J. H. Johnson, whether by the alleged 'shoving the deceased from an automobile running at a rapid rate of speed, ' or 'by running and did run and operate said automobile in a manner and way so that said J. H. Johnson was struck and jambed against a concrete post, ' or 'did hit, strike and beat said J. H. Johnson with a certain pistol and a weapon to the grand jury unknown.' That

* * * the several allegations respecting the methods, ways, and means by which it is averred the said Johnson was killed and murdered are so general, indefinite, and vague as not adequately and legally advising defendant as to how and in what manner the deceased was killed and murdered. * * * "

2. "That the allegations * * * that defendant did kill and murder J. H. Johnson 'by shoving said J. H. Johnson from an automobile running at a rapid rate of speed, ' are too vague, indefinite, and general to constitute a legal charge of murder; are mere conclusions, stating no particular and definite facts as to enable defendant to prepare his defense; * * * they do not allege the speed at which the automobile was running, nor how or in what way or manner said J. H. Johnson was shoved from the same; nor wherein or whereby the shoving of the deceased from the moving automobile occasioned * * * the death of the said J. H. Johnson." "That the allegations that the deceased was killed and murdered by the defendant by "running and did run and operate said automobile in a manner and way so that said J. H. Johnson was struck and jambed against a concrete post, " are too vague, indefinite, and general to advise defendant of what he is called upon to meet; * * * that it is not alleged how the running and operation of the automobile, the manner and way of its operation, did cause the said J. H. Johnson to be struck and jambed against a concrete post; all of such allegations being mere conclusions of the pleader. * * *"

"It is a well-settled rule in this state that the language of an indictment is to be interpreted liberally in favor of the state. Pen. Code, § 929; Studstill v. State, 7 Ga. 2, 16. It follows necessarily from this that a demurrer raising special objections to an indictment should be strictly construed against the pleader." Green v. State, 109 Ga. 536, 540, 35 S. E. 97, 99. "An indictment which charges murder 'by choking and by other means to the jurors unknown' is not demurrable, on the ground of indefiniteness in its description of the manner of the killing." Hicks v. State, 105 Ga. 627 (1), 31 S. E. 579. In the case last cited the court, in replying to the contention of counsel that "there are many kinds of choking, " said (page 629 of 105 Ga., 31 S. E. 579, 580): "To 'choke' a person is, in other words, to fill his mouth or throat with a towel or other substance, or to seize and compress his throat, so as to obstruct his breathing. This is what the grand jury meant when they used the word, and that is what the accused must have understood when the presentment was read to him." In Hall v. State, 133 Ga. 177 (1), 65 S. E. 400, it is said: "An indictment, charging murder by the defendant stabbing the person killed 'with a certain knifeand with other sharp instruments to the grand jury unknown, ' is not subject to demurrer on the ground that 'this allegation was too general. * * *"' In Waller v. State, 164 Ga. 128 (1), 138 S. E. 67, it was held that the weapon with which the crime was alleged to have been committed need not be more definitely described than that it was "a piece of iron * * * some blunt instrument, the exact character of which is unknown to the grand jury." We quote next from Walker v. State, 141 Ga. 525, 81 S. E. 442:

"1. Under the rulings in Hicks v. State, 105 Ga. 627, 31 S. E. 579, and Hall v. State, 133 Ga. 177, 65 S. E. 400. an indictment which charged that the accused killed and murdered a named womam 'by then and there choking and beating her, and by drowning her, and by other violent means to the grand jurors unknown, ' was not demurrable on the ground that it did not set forth with particularity or definiteness what kind of choking or beating was used, or whether with the hands or some instrument, or the manner of doing it, or upon what part of the' person the choking or beating was done. (a) Nor was such indictment demurrable on the ground that it did not describe the mode of drowning or the place (other than the county)."

"Where an indictment alleged that the accused killed a woman by shooting her with 'a certain pistol and with a certain rifle, ' it was not error to overrule a demurrer based on the ground that the homicide was charged as committed with two different instruments alleged conjunctively, that it is physically impossible to kill a person with a gun and a pistol at the same time, and that one of them alone must have produced the death. Walker v. State, 141 Ga. 525, 81 S. E. 442, and authorities cited."

See, also, Knight v. State, 148 Ga. 40 (1), 95 S. E. 679.

We quote from Williams v. State, 2 Ga. App. 629 (1), 58 S. E. 1071: "Where every essential ingredient of the offense charged is set forth with sufficient clearness to enable the defendant to prepare his defense and the jury clearly to understand the nature of the offense, the accusation is not demurrable." See, also, the recent case of Walton v. State, 44 Ga. App. 298 (1), 161 S. E. 273, where the same rule is applied. Section 954 of the Penal Code (1910), reads: "Every indictment or accusation of the grand jury shall be deemed sufficiently technical and correct, which states the offense in the terms and language of this Code, or so plainly that the nature of the offense charged may be easily understood by the jury. * * *" We hold that the indictment in the case at bar is not subject to the demurrer.

Deputy Sheriff George L. Mock testified, in substance, that shortly before the homicide he saw Policeman J. H. Johnson near a heav ily loaded red roadster automobile which was standing on one of the streets of Waycross; that in reply to witness' query as to what he had, Johnson said "a load of liquor"; that the rumble seat of the automobile was up, and witness "saw some bulky sacks in there"; that Johnson spoke to the defendant, W. C. De Vere, and De Vere "got under the wheel, " and Johnson got on the left running board, " and the roadster started; that witness followed the car, and saw it pick up speed and swerve, and thought "they were trying to run away" with Officer Johnson; that when they got pretty close to the underpass, witness saw Johnson reach in the car, and thought he "was cutting the motor off;" that the car was making from forty to fifty miles an hour; that the car cut to the left so as to throw Johnson...