Watson v. State

• Decision Date: 22 January 1918
• Docket Number: (No. 8941.)
• Citation: 21 Ga.App. 637,94 S.E. 857
• Parties: WATSON . v. STATE.
• Court: Georgia Court of Appeals

94 S.E. 857

(21 Ga.App. 637)

WATSON .

v.STATE.

(No. 8941.)

Court of Appeals of Georgia,

Division No. 2.

Jan. 22, 1918.

(Syllabus by the Court.)

Error from Superior Court, Barrow County; A. J. Cobb, Judge.

John Watson was convicted of voluntary manslaughter, and he brings error. Affirmed.

John Watson was indicted for murder and was convicted of voluntary manslaughter. The indictment alleged that the murder was committed "by, hitting and striking said Jim Mahaffey with a certain soda water bottle on the head." In the defendant's motion for a new trial it was alleged (in addition to the general grounds) that the court erred' in charging the jury as follows:

"It is incumbent upon the state in the trial of a criminal case to prove to the satisfaction of the jury, beyond a reasonable doubt, all of the material averments in the bill of indictment. If an indictment in a case of murder alleges the weapon to be of a certain character, then the evidence must satisfy the jury, beyond a reasonable doubt, that the killing was done with the weapon alleged in the indictment, or a weapon of similar nature. If you believe from the evidence, beyond a reasonable doubt, that the killing was done in the present case with a soda water bottle, and also' believe that the other material parts of the indictment have been proved to your satisfaction beyond a reasonable doubt, the state would have carried the burden which rested upon it. And if it should appear to you that the killing was done, not with a soda water bottle, but with another instrument, of similar nature, a blunt instrument, which would inflict a wound of the same character of wound that might have been inflicted with a soda water bottle, if you believe this beyond a reasonable doubt, then that averment in the indictment would be sufficiently proved. If, however, you believe from the evidence in the case and all the circumstances in the case, taking into consideration the defendant's statement, that the killing was not done with a soda water bottle and not done with an instrument of like nature of a soda water bottle, or you have any doubt on_ your mind as to whether it was done with a similar instrument, or similar weapon, then you should give the defendant the benefit of the doubt and find in his favor on this allegation of the indictment, which would be a material averment in the indictment, or if you have a reasonable doubt as to any of the material allegations in the indictment, give the defendant the benefit of the doubt and find a verdict of not guilty."

Error is also alleged in the failure of the judge to charge the following request, made in writing before the judge began his charge to the jury:

"I charge you that if you believe from the evidence, when considered in connection with the defendant's statement in this case, that the defendant struck the deceased with a brick, and you believe from the evidence that this was the mortal blow, and that it was from the effect of this blow with a brick that the deceased died, you would not be authorized to find the defendant guilty in this case."

It is further alleged that the court erred in refusing to charge as follows:

"Every allegation in the indictment must be proven beyond a reasonable doubt. Hence, it there is a reasonable doubt resting on your minds as to which of two instruments (if the evidence in this case shows the use of two instruments) caused the death of the deceased, it would be your duty to give the defendant the benefit of the doubt as to which of the two instruments inflicted the mortal wound."

Lewis C. Russell, of Winder, for plaintiff in error.

W. O. Deau, Sol. Gen., of Monroe, for the State.

HARWELL, J. (after stating the facts as above.) The evidence for the state disclosed that the deceased was killed with a soda water bottle, and the evidence for the accused tended to the theory that there was a second altercation, and that the fatal blow was made with a brick. The special grounds of the motion for a new trial, which complain of certain excerpts from the court's charge and the refusal to charge as requested, make practically one question, and that is: Did the learned trial judge err in charging that, "if it should appear that the killing was done, not with a soda water bottle, but with another instrument, of similar nature, a blunt instrument, which would produce a wound of the same character that might have been inflicted with a soda water bottle, " a conviction could be sustained, under the allegations of this indictment, or, in other words, there would be no fatal variance between the allegations and the proof? The able counsel for the defendant earnestly insists that there would be a fatal variance; that the state, having alleged that the instrument was a soda water bottle, would be held to proof of that, but cites no Georgia case directly sustaining that contention.

The case nearest in point in this state, and in fact the only one so far as we have been able to find, is that of Trowbridge v. State, 74 Ga". 431. That was an indictment charging the defendant with assault with intent to murder by using "an ax, a weapon likely to produce death." The prosecutor testified that he was struck with an axe. One of the defendants claimed that it was done with a rock. The defendants were convicted of assault and battery, and moved for a new trial on numerous grounds, the substance of which is stated in the opinion. The court said:

"The prosecutor proved that the assault was made with the weapon charged in the indictment, and although the defendants proved that it was made with a different weapon, this only brought about a conflict of evidence, and the jury had a right to believe the prosecutor instead of the defendants' witnesses. At best it is not indispensable to prove the precise weapon set forth in the indictment; it is sufficient if both were weapons likely to produce death, and were capable of inflicting the same character of injury. 2 Bish. Crim. Procedure, §§ 514, 659, and citations."

This decision of the Supreme Court has never been overruled, doubted, or criticized, so far as we can find, and is, we think, eon-trolling upon the question raised in the instant case. If it be said that the question was not there distinctly made, and that the statements in the opinion are obiter, it is nevertheless, as an expression from the Supreme Court, so persuasive as to justify our acceptance of it as the law until otherwise decided. This opinion by Mr. Justice Hall in the Trowbridge Case, supra, seems to be almost unanimously upheld by the courts of other states and by the text-book writers who have written anything on the subject. Upon examination of the decisions cited they sustain the texts.

"Where the instrument of death alleged and that proved are substantially of the same character, capable of inflicting practically the same nature of injury in substantially the same manner, there is no variance. The question in each case is whether the nature and character of the injury and the manner and means of inflicting it as proved are practically and substantially, though not identically, the same as that alleged." 11 Standard Ency. of Procedure, 594, 595, citing cases sustaining the text from Alabama, Illinois, Indian Territory, Kentucky, Maine, Massachusetts, Mississippi, Nebraska, New Hampshire, New Jersey, North Carolina, Oklahoma, Tennessee, Texas, and Washington. Knife and razor similar. May' v. State, 110 Ark. 432, 162 S. W. 43. See, also, Elliott v. State, 4 Okl. Cr. 224, 111 Pac. 820, 140 Am. St. Rep. 683; Hernandez v. State, 32 Tex. Cr. R. 271, 22 S. W. 972. "It is the received doctrine that in homicide cases, where the indictment alleges the killing was done with a gun, proof can be made under such allegation that the killing was done with any firearm." Taylor v. State, 44 Tex. Cr. R. 547, 72 S. W. 396, and other states. Piece of plank alleged; piece of iron proved; variance not necessarily fatal. State v. Weddington, 103 N. C. 364, 9 S. E. 577.

In the case of State v. Gould, 90 N. C. C66, in which it was contended that there was a...