Warrick v. State

• Decision Date: 28 March 1906
• Citation: 53 S.E. 1027,125 Ga. 133
• Parties: WARRICK v. STATE.
• Court: Georgia Supreme Court

53 S.E. 1027

125 Ga. 133

WARRICK v. STATE.

Supreme Court of Georgia

March 28, 1906

Syllabus by the Court.

On the trial of an indictment for murder, where it appeared that the deceased was at the house of one Frank Moody; that he arose from the place where he was sitting and said to another who was present, "Let's go and get Frank's horse and buggy, and we can ride over town"; and that this was said as he started to the lot in front of which the homicide occurred, and just before it took place, such a statement accompanying the act of starting from the house, was properly admitted in evidence.

Where it appeared that the accused and the deceased had a quarrel prior to the fatal rencounter, and on the same day, and there was some evidence tending to show that shortly before the killing took place the deceased had a pistol, and that about 30 minutes before it occurred he said, "God damn him, I will kill him," such a threat was not objectionable on the ground that it was a mere idle statement, and was not a threat against the accused.

When uncommunicated threats by the deceased against the accused are admissible in evidence, and when not, discussed.

Where after the shooting had occurred, the horse of the defendant which was standing at the place where it happened, moved off a slight distance, and was stopped by him, and he at once returned, and, some five minutes after the shooting, a person who had not been present during the transaction came up and told the accused to come on, saying that he shot the deceased, to which the accused replied, "I will tell you all about it," it was proper to reject the narrative or statement which the accused proposed to show that he had then made.

There was no error in rejecting the evidence of a witness that the deceased had the reputation of carrying firearms and deadly weapons on his person, there being nothing to show that this was known to the accused.

Where it was sought to show a general character for violence on the part of the deceased, this could not be established by proof of specific acts. Nor did the fact that certain witnesses for the defendant, who testified in regard to the character of the deceased on cross-examination, stated that they did not know of any specific acts of violence, except one drunken quarrel with the accused, authorize the defendant to prove by other witnesses introduced on his behalf that they did know of certain specific acts of violence on the part of the deceased; such testimony not being invoked in connection with or in reply to any cross-examination of the last mentioned witnesses.

In a proper case, on a trial of one indicted for murder, sections 70, 71, and 73 of the Penal Code of 1895 may all be given in charge, but instructions as to the separate branches of the law of justifiable homicide should not be so given as to confuse the different defenses which may arise under those sections.

Where the evidence is conflicting as to whether a particular thing did or did not occur, and the presiding judge charges the jury the legal principle that the existence of a fact testified to by one positive witness is rather to be believed than that such fact did not exist, because many witnesses who had the same opportunity of observation swear that they did not see or know of its having transpired, he should also give an instruction to the effect that, in weighing the testimony of witnesses, the jury should consider and pass upon their credibility.

Error from Superior Court, Appling County; T. A. Parker, Judge.

Dozier Warrick was indicted for murder. On the trial he was found guilty of voluntary manslaughter. He made a motion for a new trial, which was overruled, and he excepted, and brought error. Reversed.

W. W Bennett and Kay, Bennett & Conyers, for plaintiff in error.

Jno. W. Bennett, Sol. Gen., for the State.

LUMPKIN J.

1. The defendant and the deceased were both at the place of Frank Moody, the defendant having his horse and buggy. The deceased arose from where he was sitting and said to another who was present, "Let's go and get Frank's horse and buggy, and we can ride over town." This was said as he started to the lot just in front of which the homicide occurred, and just before it transpired. Objection to this evidence was made by the defendant. Such a statement, accompanying the act of starting from the house where he had been, was a part of the res gestae, and was properly admitted. Price v. State, 72 Ga. 441; Johnson v. State, 72 Ga. 679; Thomas v. State, 67 Ga. 460.

2, 3. A witness for the defendant testified, "He [Robert Sellers, the deceased] said, 'God damn him, I will kill him,' but did not call anybody's name." The motion for a new trial alleges that counsel for the state objected to this evidence, without stating any special grounds, and that the court excluded it. It is insisted that it was admissible to show the mental condition of the deceased when it was made, some 30 minutes before the homicide, and also to illustrate the conduct and acts of the deceased at the time of the killing. The evidence disclosed that earlier in the same day the accused and the deceased had had a quarrel. As to what may be the actual facts we express no opinion; nor as to what witnesses the jury should believe, nor what was the truth of the case; but there was some evidence on behalf of the defendant tending to show, that shortly before the shooting, the deceased had a pistol, although it did not appear that he had it when killed; and that about 30 minutes before it occurred, he made the threat stated above. There was also evidence tending to show, that the deceased struck the first blow; that in the final quarrel some opprobrious language was used, and the deceased started towards the accused, as if for a fight, and, after being held temporarily by a bystander, was released, and he and the accused went together and fought; that the deceased was decidedly the larger man, and struck the accused, knocking him back against the buggy, and that in the fight the accused shot him. He also sought to show that before he fired, a shot or shots were fired by one or more friends of the deceased who were present. Immediately after the shooting the evidence shows that he said he had to do it. Evidence of other threats by the deceased was introduced.

Counsel for the state insists that the threat was properly excluded on the ground, as stated in his brief, that no threat was made against the defendant, and the statement of the deceased, if made at all, was a mere idle statement. But the fact that it was somewhat indefinite did not render it inadmissible, where it was reasonably capable of being applied to him. Harris v. State, 109 Ga. 280, 34 S.E. 583. While, as stated, the specific ground on which it was rejected does not appear, from the argument of counsel for defendant we think it not inappropriate to discuss somewhat the law of undisclosed threats, as it stands in this state. On the subject of the admissibility of uncommunicated threats against the accused by the deceased, there has not always been perfect uniformity in the decisions of this court. In Hudgins v. State, 2 Ga. 173, it was said "When the question is whether a homicide is felonious or justifiable, the opinion of a witness, as to the intention of the deceased in approaching the prisoner, is not evidence; aliter, as to any information which the witness may have communicated, whether true or false." In Howell v. State, 5 Ga. 48, it was said, "Where the defendant, on his trial for an assault with intent to murder, proposed to ask a witness 'if he did not know that Dill (the party assaulted) had threatened to drive the defendant from the place or take his life,' it was *** competent evidence to be submitted to the jury for their judgment under the statute, either as a justification or to rebut the presumption of malice." In the opinion it is stated that, "Whether the threats of Dill, to drive the defendant from the place or take his life, were ever brought home to the knowledge of the defendant, the record is silent." It was further said that, "by the twelfth section of the fourth division of the Penal Code of 1895, it is justifiable homicide to kill a human being in self-defense or in defense of habitation, property, or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony on either. *** The threats of Dill, proposed to be proved by the witness, manifested an intent, on his part, to commit a felony on the person of the defendant." In Monroe v. State, 5 Ga. 86, it is said: "Threats, accompanied with occasional acts of personal violence, are admissible to justify the reasonableness of the defendant's fears, provided a knowledge of the threats is brought home to him." In Keener v. State, 18 Ga. 194, 63 Am.Dec. 269, it was said: "When previous threats, without any overt act, are sought to be introduced by the defendant, by way of justification, it must be shown that they had been consummated [[[[[[communicated?]; aliter, if used merely to show the state of mind or feeling on the part of the deceased." On page 228 of 18 Ga. (63 Am.Dec. 269) it was said: "The true distinction, we apprehend, as to the admissibility of evidence of threats, and one apparently overlooked in many of the cases, is this: When sought to be introduced by the defendant as a justification for the homicide, and without any overt act, he must show that they have been communicated; otherwise they can furnish no excuse for his conduct; but when offered to prove a substantive fact, namely, the state of feeling entertained by deceased toward the accused, it is competent testimony, whether a knowledge of the threats be brought home to the defendant or not." In Lingo v. State, 29...