Warren v. State, (No. 5391.)

• Court: Supreme Court of Georgia
• Citation: 135 S.E. 735,163 Ga. 176
• Docket Number: (No. 5391.)
• Parties: WARREN v. STATE.
• Decision Date: 15 November 1926

163 Ga. 176

135 S.E. 735

WARREN

v.STATE.

(No. 5391.)

Supreme Court of Georgia.

Nov. 15, 1926.

(Syllabus by the Court.)

[COPYRIGHT MATERIAL OMITTED.]

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Legal Malice.]

Atkinson, J., dissenting in part.

Error from Superior Court, Miller County; M. J. Yeomans, Judge.

Henry Warren was convicted of murder, and he brings error. Affirmed.

P. Z. Geer, of Colquitt, and Chester A. Drake, of Blakely, for plaintiff in error.

B. T. Castellow, Sol. Gen., of Cuthbert, Geo. M. Napier, Atty. Gen., T. R. Gress, Asst. Atty. Gen., and R. R. Arnold, of Atlanta, for the State.

BECK, P. J. Henry Warren was tried under an indictment charging him with the offense of murder. The person alleged to have been murdered was Robert Wilson. Jim Kemp, introduced as a witness by the state, testified, in substance, that he knew Robert Wilson; that Henry Warren killed him on the third Sunday in July, 1925. He was an eyewitness of the fact. He was present at a party at the house of one John Bird, where a considerable number of people were gathered. Witness was in the room where the killing occurred. He was sitting in a chair, and a woman by the name of Rosa Barber was sitting in his lap. This woman made a remark very derogatory to another woman in the room. The other woman walked away, and a few minutes after that Henry Warren and John Bird were standing close to the door. Warren said: "Cut this ——fuss out, you ——sons of bitches, before I kill every one of you."

He then ran into Robert Wilson, about two steps from the witness, and shoved him with his left hand, and stabbed him. Wilson did not go towards Warren at all. Warren had a knife in his hand, and shoved Wilson and stabbed him; he had a knife open when he ran into Wilson. Wilson was standing with a cigarette in his hand, preparing to light it. Warren stabbed him a little above the collarbone, in the front part of the neck. Wilson ran out and up to a wire fence, fell, and died almost immediately. Witness did not see any weapon in Wilson's hand.

Willie Grimsley, another eyewitness to the killing, gave substantially the same testimony as that of Kemp. He testified positively that no words passed between the accused and the man who was slain. He remembered nothing of any "fuss" there. Wilson was standing up with a cigarette in his mouth.

Rosa Barber, also an eyewitness, testified substantially to the same facts as detailed by the witnesses previously named. To quote her words in part, she said:

"Henry Warren was tearing through the crowd, cursing and shoving people back, and went right on to Robert Wilson and said, 'Cut it out, ——it, ' and I don't know what Robert Wilson said, but Henry Warren grabbed hold of Robert Wilson with one hand and stabbed him with the knife just under his neck. Robert Wilson did not have anything in his hand; he had a cigarette in his mouth."

The details of the killing, as given by this witness, were in substantial accord with the details given by the other witnesses quoted above.

Dora House, a witness for the state, who was present at the time of the homicide, testified that there was no altercation between Wilson and the defendant at the time of the killing. Wilson was standing up smoking a cigarette; had one hand on his hip. He had the cigarette in his mouth, and Henry Warren pushed find shoved through the crowd and said, "Get out of there with that —— fuss, " and said what he would do if they refused. Warren went pushing through the crowd and pushed Wilson back, and Wil-son cursed, and then Warren cut him with the knife. Wilson had no weapon, nor was he making any attempt to hurt any one at the time. Wilson started to run, stumbled, but caught on his knees, and, when he went to get up, Warren seized him again as he went to rise; and then Wilson, tearing loose from Warren's grasp, went out the door, half bent.

One Shephard, sworn in behalf of the state, testified substantially to these facts already stated. Ella Bird, another witness for the state, testified that she saw the killing; saw Henry Warren walk up to Wilson, catch hold of him, and stab him. She testified that the next morning Henry Warren took Wilson's knife out of his pocket and laid it at his (Wilson's) feet, and next morning got his (defendant's) wife, and she made a little mark on his neck. Told his wife to cut him on the neck, and she made a little mark on his neck. She merely sawed on his neck a little bit.

H. M. Roberts, for the state, testified in part that he saw Henry Warren on the morning after the killing, and asked him who killed Robert Wilson. Warren replied that he did not know who killed him, but said:

"The poor boy was killed for nothing, "

B. B. Houston, for the state, testified that he went out to Henry Bird's house the next morning after Wilson was killed. The body of the latter was lying, at the end of the house, in the yard. He was lying on his back; a knife was near his hand. Henry Warren said he did not know who killed him.

"He never quit denying knowing who killed him until we got that knife—that knife there. That was about four days after Robert Wilson was killed. He continued denying knowing who killed Robert until I presented this knife to him. This knife was delivered to my brother. I am deputy sheriff in Miller county."

The knife referred to was introduced in evidence. '

The defendant introduced no evidence, but made the following statement:

"Gentlemen of the jury, when the fuss occurred this girl Adeline walked in the house, and this girl Rosa spoke to her, and said, 'There is a whore that has been out all night, ' and Adeline said, 'Who are you talking to? To me?' and Robert Wilson said, 'No; she is not talking to you, but she is talking to me, ' and I was standing in the door 'side of John Henry Bird, and Dora Howell was sitting by the side of the door, and her boy was sitting just beyond her, and they kept on arguing and in the racket, and I spoke to the woman inside of the house, and I said, 'If I was you all, I would not be arguing that way, ' and Robert Wilson spoke to me and said, 'You ——son of a bitch, what have you got to do with it?' and I didn't say nothing. I went on towards him, and he throwed his hand back on his pocket, and he grabbed me on the neck, and I slapped Mm off. I thought he was going after his pistol by his throwing his hand back that way, and I pulled out my knife and met him with it as he come back. I was not after killing him with it; I was trying to keep from getting hurt myself."

The jury returned a verdict of guilty, without a recommendation. The defendant made a motion for new trial, which was overruled, and he excepted.

1. In the first ground of the amendment to the motion for a new trial, complaint is made that the court erred in recalling the jury from their room after they had been charged in the case, and after they had been out only a few minutes, and giving them another charge, in the absence of the defendant and in the absence of defendant's counsel, without the consent of defendant and his counsel. To this ground the court appends the following note:

"Within two or three minutes after the main charge was delivered and before any other case was sounded, the jury was recalled to their box and the supplementary charge complained of in paragraph one of the amended motion was delivered, the defendant being present. Defendant's attorneys had not been excused nor did they have leave of absence, and the court thought they were present. Certainly, Mr. Greer, leading counsel, according to his affidavit, was in the courtroom before the charge was completed, and the court's attention was not called to any irregularity, nor was any motion made."

We are of the opinion that the court did not err in overruling this motion for a new-trial, so far as it rests upon the ground just recited, considered in connection with the court's note. The judge had charged the jury, and they had retired to the jury room. Within two or three minutes after they retired, and before sounding any other case, the judge had the jury recalled and stated to them that there were some matters which he had unintentionally overlooked, and then gave the jury the following charge:

"Gentlemen of the jury, the charge which I have given you is a rather lengthy charge, and in giving you that charge there are some matters I unintentionally overlooked, and you may consider what I will now give you in connection with the other charge I have already given you. I am going to charge you, gentlemen, on self-defense. The right to kill another in self-defense is not restricted to instances where the defendant was put in actual danger of life or of the commission of a felony upon him by the party killed, but may be exercised where such danger is not actual, if the defendant, in good faith, under the fears of a reasonable man and under circumstances so authorizing, acted upon the belief that the danger was real. I charge you, gentlemen, that an apparent necessity to kill another, acted upon in good faith by the defendant, is the equivalent of a real necessity. If you have a reasonable doubt arising from the defendant's statement, or from the evidence, or from the lack of evidence as to whether the circumstances...