Vincent v. State
| Citation | 112 S.E. 120,153 Ga. 278 |
| Decision Date | 14 April 1922 |
| Docket Number | 2952. |
| Parties | VINCENT v. STATE. |
| Court | Supreme Court of Georgia |
Syllabus by the Court.
The manner and appearance of the defendant whose acts and utterances constitute part of the res gestæ are relevant testimony on his trial for homicide; and that he spoke pleasantly and was in good humor, when he met the deceased are matters of fact, not of opinion requiring the statement of the facts upon which such opinion is based.
Before proof of uncommunicated threats is admissible in defense there must be evidence tending to show that the deceased was the assailant in the fatal encounter, or did some overt act showing an intention to carry such threats into execution.
(a) The proper foundation for the admission of uncommunicated threats cannot be laid by the defendant's statement alone.
(b) When the evidence leaves it doubtful as to which of the parties began the mortal combat, and there is testimony tending to show that the slayer killed his adversary in self-defense, or under the influence of reasonable fears and not in a spirit of revenge, evidence of this character is admissible to show the state of mind or feeling on the part of the deceased, and thus illustrate his conduct and throw light upon his intention and purpose.
(c) A witness can testify as to threats, which he heard, although he did not know who made them, and did not communicate them to the defendant, to corroborate other witnesses who swore that these threats were made by the deceased toward the defendant, and that they had communicated them to the defendant a few days prior to the homicide.
Testimony that vomit was found the next afternoon on the two beds in and on the floor of, the room of the hotel occupied by the defendant and two other guests on the Wednesday night preceding the homicide on the next Saturday, the defendant having left early the next morning apparently sober, and the other two guests not checking out until the following afternoon, was irrelevant, and should have been rejected on timely objection of the defendant; and the admission of such irrelevant evidence is ground for the grant of a new trial under the facts of this case.
The judge may interrupt the defendant when, in making his statement, he is stating wholly irrelevant facts, and instruct him to leave out such facts, and confine his statement to the case.
An instruction that the defendant had no right to arm himself and go to the place of business of the deceased, if he ought to have expected, as a reasonable man, that his presence there would provoke a difficulty, was inaccurate and erroneous, as the right of the defendant to seek an interview with the deceased depended, not on the soundness of his judgment in determining the consequences thereof, but upon the peaceful intent with which he sought such interview.
An instruction, that "Legal malice is the intent unlawfully to take away the life of a human being," is inaccurate and erroneous, as it excludes deliberation or premeditation, which is the gist of murder.
An instruction, that if the jury found that the deceased had threatened the life of the defendant, and had a pistol for the purpose of killing him, such threat and conduct "would not justify the defendant in going to the deceased's place of business with the intent to kill him, and, in pursuance of such threats, taking his life," assumes that the defendant went to the place of business of the deceased with the intention to kill him, and, in pursuance of such intent, took his life, and amounts to an expression or intimation of OPINION that these facts were true. Such instruction requires the grant of a new trial.
The trial judge did not err in failing to give in charge to the jury section 76 of the Penal Code of 1910, when he fully instructed the jury as to the law of justifiable homicide and its effect upon their verdict.
The court did not err in failing to give in charge to the jury the law of voluntary manslaughter under the evidence in this case.
When the defense is set up that the defendant killed the deceased under the influence of reasonable fears, and not in a spirit of revenge, the jury must find, in order to acquit, that the circumstances surrounding the defendant at the time of the killing were sufficient to excite the fears of a reasonable man, and, in reaching a conclusion on this question, must do so from the standpoint of a reasonably courageous man, situated as the defendant was, when the fatal shot was fired or the mortal blow was inflicted.
We find no material errors in the other grounds of the motion for new trial, and therefore do not refer to them specifically. As a new trial is granted, we will not discuss the evidence.
Additional Syllabus by Editorial Staff.
Any error in rejecting evidence was cured by its subsequent admission.
"Malice" is the deliberate intent unlawfully to take away the life of a fellow creature, and may be express or implied.
Error from Superior Court, Murray County; M. C. Tarver, Judge.
Verner Vincent was convicted of murder, and he brings error. Reversed.
Verner Vincent was indicted for the murder of Smith Treadwell. He was convicted, and brought his case to this court, assigning error on the judgment of the lower court overruling his motion for a new trial.
On May 26, 1920, Miss Ora Bell Jones, Miss Thelma Treadwell, and Drs. Swinney and Munford were traveling in an automobile, which broke down at Crandall. The defendant, a traveling salesman, was spending the night at Crandall, and had retired for the night. Dr. Swinney went to his room, and asked him if he would not lend them his car in order that they might return to Chatsworth, where they lived. The defendant replied that the car did not belong to him, and for that reason was unwilling to lend it to them. When informed of the plight in which these young ladies would be left if they could not get home that night, the defendant stated that, although he was tired out and had retired for the night, he would take the automobile in which he was traveling and take them back to Chatsworth. This he did. Miss Jones sat on the front seat of the automobile with the defendant. Miss Treadwell and the doctors sat on the back seat. The highway on which they were traveling passed under a culvert. Under this culvert the defendant stopped his car, and remarked that he was going to take a drink. He reached back in his pocket to take out a bottle for this purpose. Miss Treadwell objected to his taking a drink. The defendant said that he was not going to hurt any one. Miss Treadwell replied that, if he was going to drink, he would turn the car over. The defendant laughingly said he would turn the car over and kill every damn one in the car. Miss Treadwell then jumped out of the car and ran forward, and Dr. Swinney followed her. After she got out the defendant asked Miss Jones what that meant, and Miss Jones told him that Miss Treadwell objected to his taking a drink, but that she would get back in the car when they overtook her. The defendant overtook Dr. Swinney and Miss Treadwell going up a hill, and the defendant slowed down his car and asked them to get back in, saying he was going to bring Dr. Munford and Miss Jones on to Chatsworth. Dr. Munford said to Miss Treadwell and Dr. Swinney to get in; that there was no use of acting a fool like that. Dr. Swinney replied that they would walk on; that he would get a car at Eton and come on to Chatsworth.
The defendant spent the night at the hotel in Chatsworth. Miss Ora Bell Jones was the daughter of the keeper of this hotel. When the defendant reached the hotel with Miss Jones and Dr Munford, all the rooms had been taken by guests. For this reason he did not register, but spent the night in a room occupied by two other guests, there being two double beds in this room. After the defendant had retired the deceased came to the hotel, hunting for him. The deceased was very angry, declaring that the defendant had insulted his sister. He endeavored to locate the room in which the defendant was sleeping. He cursed and abused the defendant as a "God damned son of a bitch." He went through the hotel endeavoring to find the defendant. He threatened to kill the latter if he could find him. The deceased was armed with a pistol. He declared that if he did not get the defendant that night he would get him the next morning. It seems that the defendant did not know that the deceased had gone to the hotel that night hunting for him, and did not know that the deceased had abused him and threatened to kill him. On the following morning he was informed by the proprietor of the hotel of the conduct of the deceased the night before, and of his threats to kill the defendant. The defendant was advised by Miss Jones to call up Miss Treadwell and apologize to her for his conduct on the way from Crandall to Chatsworth the night before. Miss Jones told him that the deceased was mad because he had been informed that the defendant had offered to give his sister a drink of liquor on the trip; and Miss Jones informed him that, if he would call up Miss Treadwell and apologize to her, the matter could be smoothed over. Thereupon he telephoned Miss Treadwell. She and the defendant differed as to what passed between them. She testified that the defendant told her he understood that she had become offended at what had happened the night before. She said she certainly did; that he must have thought they were all heathens up there; and at that they were disconnected, or Vincent hung up. She halloed once or twice, and never heard anything more from him. The defendant stated, and Miss Jones testified, that the latter called Miss Treadwell over the telephone, that the defendant made himself known...
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