Wall v. State

• Decision Date: 17 April 1922
• Docket Number: 3004,3005.
• Citation: 112 S.E. 142,153 Ga. 309
• Parties: WALL v. STATE. LEWIS v. STATE.
• Court: Georgia Supreme Court

112 S.E. 142

153 Ga. 309

WALL v. STATE.

LEWIS v. STATE.

Nos. 3004, 3005.

Supreme Court of Georgia

April 17, 1922

Syllabus by the Court.

Evidence tending to show motive is always relevant and admissible; and where there is evidence from which the inference might be drawn that the defendants had conspired to avenge one of their number who had been shot by the town marshal in a previous difficulty, evidence of such difficulty was properly admitted by the court.

Unless a conspiracy is shown prima facie, evidence of the acts and declarations of one of the alleged conspirators can only operate against the person whose acts and declarations are proved if he is on trial, or, if he is not on trial, they are not admissible against the defendants being on trial, and should be rejected.

(a) Acts and declarations of a codefendant or alleged conspirator are admissible against the other only when made and done during the pendency of the criminal enterprise and in furtherance of its object.

(b) The declarations or conduct of one joint conspirator, made after the enterprise is ended, are inadmissible except against the person making them, and against others must be rejected as narrative merely of past occurrences.

When testimony is improperly admitted at the stage of the trial when it goes to the jury, subsequent proof, which renders its admission proper, cures any error in its prior admission.

A party may show any fact or circumstance that may affect the credit of an opposing witness; and the court erred in refusing to permit the defendant to show by the sheriff, who was a witness for the state, on his cross-examination, that he had refused to permit counsel for the defendant to have a conference with his client out of the presence of the other inmates in the same cell, on the alleged ground that it was unfair to the prosecution; this evidence tending to show bias of this witness against the accused.

Proof of acts of an alleged conspirator, after its termination, are not admissible against another alleged conspirator; and the court erred in admitting, over the defendant's objection proof that one of said alleged conspirators, after the criminal enterprise was over, brought to the home of the witness a pistol, and in admitting such weapon in evidence.

The trial judge did not commit error in instructing the jury that "the words, reasonable doubt * * * mean what they necessarily imply. They do not mean an entire absence of doubt, no doubt at all, an entire want of doubt; nor do they mean a whimsical, capricious, or fictitious doubt, but, as the words imply, a reasonable doubt."

An instruction that "it is only when a felony is intended that a killing is justifiable," that, "if the assailant intends to commit a trespass only, to kill is manslaughter," and that, "if he intends a felony the killing is self-defense, and is justifiable," is a correct instruction applicable to self-defense, and, under the facts stated in this ground, we cannot say it was error but it would be improper to give this instruction immediately after reading section 70 of the Penal Code of 1910 if the court did not make it clear to the jury that such instruction did not apply to the defense that the homicide was committed in defense of habitation, as set out in said action.

The court did not err in its instructions to the jury upon the subject of conspiracy, under the facts of this case.

The court erred in refusing, when properly requested so to do by the defendant, to charge the jury that no officer has any authority, without a warrant, to arrest a person charged with a crime, unless such offense was committed in his presence, or the offender was endeavoring to escape, or for other cause there is likely to be a failure of justice for want of an officer to issue a warrant, especially when the court nowhere referred in his charge to the defense set up that the defendants who killed the deceased were justified in so doing in resisting an illegal arrest.

The court did not err in refusing to charge, when properly requested by the defendant, that the sheriff and his posse were without legal authority to attempt to enter the habitation of Fate Chapman in the manner in which they did; the same being too general and indefinite, and not stating any legal proposition.

A person can use necessary force in resisting an illegal arrest, which must be proportionate to that used by the arresting officer; but no person can justifiably kill another merely because such person is undertaking to illegally arrest the slayer. If, however, a person kill another to avoid an illegal arrest, and not in a spirit of revenge, the homicide is generally manslaughter, and not murder. If in the progress of the arrest the officer manifestly intends or endeavors by violence or surprise to take the life of, or commit a felony on, the person sought to be arrested, the latter would be fully justified in killing the officer or other person thus attempting his illegal arrest. If the circumstances surrounding the person, at the time his illegal arrest is attempted, are such as excited the fears of a reasonable man that his life is in danger, or that a felony is about to be committed upon his person, and if, under the influence of such fears, and not in a spirit of revenge, he slays the officer or other person attempting to illegally arrest him, he would be fully justified. If he were put in fear of a lesser injury than that of a felony, the homicide would be manslaughter.

A new trial being granted in this case, we do not pass upon the sufficiency of the evidence to authorize a conviction.

Additional Syllabus by Editorial Staff.

A criminal conspiracy cannot be shown by declarations of alleged conspirators not in the presence of, and without the knowledge of, others sought to be bound thereby, but must be established by proof aliunde.

Error from Superior Court, Dooly County; O. T. Gower, Judge.

Buddie Wall and Chess Lewis were convicted of murder, and they separately bring error. Reversed.

Gilbert J., dissenting.

Buddie Wall and 19 other negroes were jointly indicted for the murder of Robert Davis, a white man, in Dooly county, on May 17, 1921. The evidence was as follows: On May 17, 1921, W. D. Cunningham, the marshal of Byromville, went to the home of Fate Chapman, a negro, to collect a tax fi. fa. for $1.75, in favor of that town, or, in default of its payment, to levy the same. Chapman said the fi. fa. was not just, and refused to pay it. The marshal then told him he would levy the fi. fa. on one of his mules in his lot. Chapman said he should not go into his lot for that purpose. They got into a tussle, when Chapman's wife came out, and said she would pay the tax. The marshal said that was all right, but that he would have to take Chapman to town because he had resisted the marshal in the execution of this process. Chapman told the marshal that the latter could not take him to town. The marshal said he would. The marshal then seized Chapman, and the latter grabbed the marshal, who was pushed back into the yard. Chapman got the marshal's pistol, but the marshal recovered it. In the struggle which ensued the marshal shot Chapman in the leg. Chapman went into his home and told the marshal to wait until he came out. The marshal got behind a tree, waited a second or so for Chapman to come out, and, when Chapman did not come out, returned to town. Later in the day the marshal went back to Chapman's to arrest him on the charge of resisting an officer. When he got there a doctor attending Chapman informed the marshal that Chapman was not able to go or be taken to town. Thereupon the marshal told Chapman that he would come back in the afternoon or next morning, and that Chapman could give a $50 bond for his appearance to answer the said charge. Chapman said that would be all right: "We will arrange it all right, Mr. Cunningham."

Ben Byrom testified that on the afternoon of May 17, 1921, he saw Lawyer West, who told him that the police had shot Fate Chapman about taxes. The witness told West that Chapman ought to have paid his taxes. West said, "There ought to be something done about it." On the afternoon of May 17, 1921, Sam Byrom was passing the home of Ras Cobb, when the latter said to the former, "I expect that I will need you to-night about dark; if I do, I will let you know, and if you come I want you to bring your gun." That morning, after Chapman was shot, Sam Byrom, Lee Adams, Chess Lewis, Jim Bennefield, and Rich Davis, with others, were at Fate Chapman's house. On the same day Lee Adams was at the home of Ras Cobb, and told him that he wanted him (Ras Cobb) to come down there that night and be with them at Fate Chapman's; that he thought there was a crowd coming in on him there.

Buddie Wall, Zolly West, and Jim Bennefield were at the store of Ras Cobb that afternoon about 3 or 4 o'clock. Chess Lewis was at Fate Chapman's at the time he had the trouble with the marshal. He told Fate if he was him he would get a gun and shoot the son of a bitch, referring to the marshal. On the same day Luke West bought from R. W. Espy, a hardware merchant at Montezuma, a box of 25 buckshot shells. On the night of that day, between 7 and 8 o'clock, Rich Davis and Jim Bennefield went to Fate Chapman's house. Bennefield carried a single-barrel shotgun with him. When they got there Lee Adams was there. Rich Davis and Jim Bennefield soon left, and went and took a seat on a bench in front of Lee Adams' house. Bennefield had his gun with him. There they met Ras Cobb, who had his gun. After a while Lee Adams came down there with his gun. Causey Chapman came from around towards Fate's, with a double-barrel gun. After a little Buddie Wall came there. He had a big black pistol. Finally came Chess...