Washington v. State

• Decision Date: 14 December 1911
• Citation: 73 S.E. 512,137 Ga. 218
• Parties: WASHINGTON v. STATE.
• Court: Georgia Supreme Court

73 S.E. 512

137 Ga. 218

WASHINGTON v. STATE.

Supreme Court of Georgia

December 14, 1911

Syllabus by the Court.

It is not necessary for the state to show affirmatively that a person who has been shot said he was in a dying condition, in order to admit proof of his declarations, if in point of fact he was in articulo mortis, and the circumstances were such that he must have known that he was in a dying condition, so that the jury might be instructed by the court as to whether the statements made by the deceased were spoken, knowing of the immediate prospect of death.

(a) It is not error for the court to allow a witness to testify that the deceased, under the circumstances detailed in the foregoing headnote, said that "he [meaning the defendant] shot me for nothing," over objection that this was a mere expression of opinion by the deceased, and not a declaration of the fact.

Where a defendant is on trial, charged with murder, and the court refuses to charge the jury on involuntary manslaughter in the commission of a lawful act without due caution and circumspection, such refusal is not error, where the evidence shows that the charge is not applicable.

Where on the trial of a defendant charged with the crime of murder the defense relied on is that the homicide was the result of accident or misfortune, and the court has correctly charged the jury the law in relation thereto, it is not error for the court to omit to define what would constitute accident or misfortune, in the absence of a request so to do.

It is not error for the court to charge the jury, on the trial of a defendant charged with murder and relying on the defense of accident or misfortune, that "while he [defendant] admits that he did the shooting as alleged by the state, on or about the time alleged by the state," where the court follows that language immediately with the words: "He [defendant] contends that the shooting was without malice aforethought, express or implied, and contends that it was not his intention to kill, but was entirely an accident or misfortune, and that he would not be guilty of any offense under the law and evidence in this case."

Where the state relies mainly upon the dying declarations of the deceased to the effect that the defendant "shot him for nothing," it is reversible error for the court to refuse to allow a witness for the defendant to testify that, shortly after deceased was shot by the defendant, the deceased told the witness that he and the defendant had had no difficulty and that the shooting was an accident; the defense relied on by defendant being that the shooting was accidental, and the testimony being admissible for the purpose of impeaching the dying declarations of the deceased.

Error from Superior Court, Jasper County; Jas. B. Park, Judge.

Richard Washington was convicted of murder, and brings error. Reversed.

Eugene M. Baynes, for plaintiff in error.

Jos. E Pottle, Sol. Gen., A. Y. Clement, and T. S. Felder, Atty. Gen., for the State.

HILL J.

Richard Washington was indicted in Jasper superior court for the offense of murder, and at the August term, 1911, of said court he was found guilty by the jury trying him, with the recommendation that his punishment be life imprisonment in the penitentiary. A motion for a new trial was made on the general grounds, which was afterwards amended. The motion, as amended, was overruled by the court, and the defendant assigns this ruling as error.

The case made by the state is substantially as follows: On the night of the homicide defendant and deceased were at the house of William Smith. "There was no frolic there that night." Neither deceased nor defendant had had any previous difficulty, so far as the evidence discloses, just before the shooting, but were sitting down, laughing and talking. Just before the pistol fired the deceased asked the defendant for a cigarette, and the defendant asked the deceased if he wanted it "rolled hard or soft, and shot him." The witness who testified to these facts was standing behind the defendant, in another room, and did not see the defendant when he fired, and did not know where he got the pistol. But one shot was fired. The defendant did not say anything after he shot the deceased, but "stood out there in the floor with his head hung down, and then went out of the door with his head hung down." The deceased just said, "O Lordy!" This witness and the deceased were sweethearts, and were to be married at Christmas. She was also a niece of the defendant, and had never heard of any trouble between the defendant and the deceased; but defendant always told her "he thought a lot of Sidney Roberts," the deceased. Two other witnesses, Margaret and Nellie Folds, also testified to substantially the above facts, except that one of them, Nellie Folds, said that defendant got his pistol out of his front pocket. "Didn't see defendant bring anything else out with his pistol. After defendant asked deceased if he wanted it rolled hard and tight, he shot immediately. *** Richard [the defendant] did not point any pistol at him to make me expect that he was going to shoot. I did not hear Richard make any remark afterwards, nor anybody else." Mr. Will Reid testified: "The night Sidney Roberts was killed, Richard Washington came over to my house, which was 400 or 500 yards from William Smith's house. Richard called me, and woke me up, and told me he had shot Sidney Roberts. He walked up on the porch and called me, and said he had shot Sidney, and I asked him what he shot him for, and he said he didn't know, and I told him to go home, and he said he was scared to go home. Richard [defendant] did not say what he shot him for, and said he didn't know. Richard stayed in the cotton seed hulls on my place that night, and I woke him up next morning. I went to see Sid, and when I came back Richard was standing on the doorsteps. I said I didn't believe Sid would live until dinner; and Richard told his wife to get his clothes, he was going to leave. I told him not to do that. I gave him his pistol. Richard did not say what he intended to do." Mr. W. F. Persons testified that he made an effort to arrest the defendant after the homicide was committed. "I arrested him three weeks ago in Florida. I had been searching for him and trying to find him before that." Dr. J. H. Bullard testified that he was called to attend Sid Roberts, the deceased; did not probe for the ball, as "the man's condition did not justify it. The wound on his body was from a pistol ball, I suppose." The wound was right in front of his body, and caused his death. If two men of about the same size were facing each other, and one fired a pistol at the other, the ball would enter about as this one did. When he got there "the man was suffering greatly, and was sinking rapidly, not in a comatose state, but showing extreme weakness and pain; and I stated to him I couldn't do him any good--could probably give him a little relief; and he was speaking about the occurrence, and said the man shot him for nothing, that he had not done a thing to him; and he gradually grew weaker and weaker. I remained around there for some time, and he went into a state of coma."

The theory of the defense was that the homicide was accidental. In his statement to the jury the defendant said that he and the deceased had been joking around the fireplace and playing, and, when the deceased asked him for a cigarette, he asked deceased if he wanted it rolled hard; that the deceased replied, "Yes," and defendant said he would roll it for him; that he intended to get the tobacco out of his pocket, and when he pulled the pistol out he did not know that there was a cartridge in it; that the pistol must have been already cocked in his pocket. He didn't remember putting any finger on the trigger, "and after the thing fired, it hurt me so bad; it almost burst my heart." He stood there a few minutes, and went over to Mr. Reid's and told Mr. Reid about it, and asked if he could stay there that night. "I knew I done this thing accidental, and couldn't help it, and didn't want to meet none of his folks." The accused further stated that he did not...