Ware v. State

• Decision Date: 08 July 1895
• Citation: 23 S.E. 410,96 Ga. 349
• Parties: WARE v. STATE.
• Court: Georgia Supreme Court

23 S.E. 410

96 Ga. 349

WARE v. STATE.

Supreme Court of Georgia

July 8, 1895

Syllabus by the Court.

1. The principle that acquiescence or silence, when the circumstances require an answer or denial, may amount to an admission, has no application to a criminal cause, where a person accused by another with the commission of an offense immediately denies all knowledge of or complicity in its commission, even though such denial be in general terms, and does not, in detail, extend to each of the minor incriminating circumstances charged against him. Such a case not being one showing silence by the accused under accusation, the court, if any charge with reference to this subject is given, should thereby withdraw entirely from the consideration of the jury the whole subject of implied admissions, and a charge which, under such circumstances leaves open to their consideration the effect of alleged admissions by silence is erroneous.

2. Upon the trial of a criminal case, where the principal incriminating evidence against the accused is purely circumstantial, consisting almost entirely of a similarity between certain tracks alleged to have been discovered near the scene of the crime, and other tracks, at other places shown to have been made by the accused, all of which indicated a like peculiarity in the shape of the boot or shoe with which they must have been made, a charge to the jury, that, in a case where there is nothing more than mere tracks, they would not be authorized to find the defendant guilty, unless there is some peculiarity about the tracks, is erroneous, under section 3248 of the Code, as expressing and intimating an opinion upon the weight of the evidence.

Error from superior court, Hall county; J. J. Kinsey, Judge.

Charlie Ware was convicted of murder, and brings error. Reversed.

H. H. Dean and H. P. Estes, for plaintiff in error.

Howard Thompson, Sol. Gen., and J. M. Terrell, Atty. Gen., for the State.

ATKINSON J.

1. The defendant was indicted for the offense of murder. The indictment contained two counts,--one alleging that the murder was committed by burning up the dwelling house of the deceased, and killing her in the commission of the arson, and the other count alleging that the homicide was committed with an ax. Upon the trial of the case, the testimony was purely circumstantial, consisting almost exclusively of tracks, and this latter class of testimony was the only character of evidence relied upon to convict the defendant of the commission of the homicide. Upon the trial of the case, a witness called for the state was permitted to testify that in the presence of the defendant, he accused him of the commission of the offense, and proceeded, with great circumstantiality, to detail a supposed set of facts which he stated to be of his own knowledge, and, at the conclusion of his statement, stated to the defendant, "You killed her with an ax." It was shown by this same witness that the defendant immediately denied killing the woman with an ax, and, upon cross-examination, the same witness testified that, when he charged the defendant with the commission of the homicide, as above stated, he immediately denied all knowledge of it, and denied that he committed the offense in any way. Upon this state of facts, the court...