West v. State

• Decision Date: 13 April 1923
• Docket Number: 3545.
• Citation: 117 S.E. 380,155 Ga. 482
• Parties: WEST v. STATE.
• Court: Georgia Supreme Court

117 S.E. 380

155 Ga. 482

WEST v. STATE.

No. 3545.

Supreme Court of Georgia

April 13, 1923

Error from Superior Court, Dooly County; O. T. Gower, Judge.

Lawyer West was convicted of murder, and he brings error. Reversed.

Gilbert C. Robinson, of Montezuma, and W. V. Harvard, of Vienna, for plaintiff in error.

J. B Wall, Sol. Gen., of Fitzgerald, T. Hoyt Davis, of Vienna, E B. Dykes, of Byronville, Watts Powell, of Vienna, Geo. M Napier, Atty. Gen., and Seward M. Smith, Asst. Atty. Gen., for the State.

ATKINSON J.

Lawyer West, having been jointly indicted with others for the murder of Robert Davis, was separately tried and found guilty. He excepted to the refusal of a new trial. This is the second appearance of the case in the Supreme Court. West v. State, 153 Ga. 327, 112 S.E. 150.

1. The declaration of another person that he committed the killing for which the accused was on trial was not admissible on behalf of the latter. Green v. State, 153 Ga. 215 (2), 111 S.E. 916.

2. Testimony was admitted to the effect that the defendant, being one of a number of persons assembled at the home of Fate Chapman, was shot down by members of a sheriff's posse while fleeing from the place, and that immediately afterwards, and while he was prostrate, a witness, a member of the posse, pointed his gun at defendant, who exclaimed, "Don't shoot!" and added that he was already killed. Witness did not shoot, but asked the defendant "what he was doing there; * * * whose gun is that?" and defendant said "that it belonged to his father, and * * * that his father gave him that gun and some shells, and told him to come there and protect Mr. Chapman." This evidence was properly admitted as a part of the res gestæ. West v. State, 153 Ga. 327, 112 S.E. 150.

3. Certain guns, pistols, ammunition, and empty shells were admitted over objection. The assignment of error based on the admission of this evidence is also controlled, adversely to the plaintiff in error, by the decision in the case of West v. State, 153 Ga. 327, 112 S.E. 150.

4. The court charged the jury:

"Among other things, the state contends that the defendant and others associated with him entered into a conspiracy to do the act alleged in the bill of indictment, to wit, to commit murder, to take human life; and the state further contends that it has established, regardless of whether a conspiracy is shown to your satisfaction beyond a reasonable doubt, that it has established, according to the state's contention, the fact that this defendant is the man himself who did the killing of the deceased, Robert Davis. The state relies, however, in both instances, upon circumstantial evidence, to establish whether or not a conspiracy is shown, and I will charge you upon that subject later; and it relies also upon circumstances to show that this defendant is the man who shot and killed Robert Davis, as mentioned in the state's bill of indictment."

The above-quoted charge was not error for the following alleged reasons:

(a) "That the court charged the jury, as is shown by this excerpt, that defendant merely intended to commit a murder; and it is contended by movant that the state must prove its case as laid, to wit, that the defendant intended to kill and did kill Robert Davis, and that the charge of the court must follow and conform to the allegations of the indictment. * * *"

(b) The instruction was "in the alternative," and improperly submitted to the jury the theory of guilt based on commission of the homicide by the defendant personally, and on commission of the homicide by one other than the defendant in pursuance of a conspiracy among several persons including the defendant.

5. Where the judge charged the jury in the language of Penal Code, § 1010, which provides, "To warrant a conviction on circumstantial evidence, the proved facts must not only be consistent with the hypothesis of guilt, but must exclude every other reasonable hypothesis save that of the guilt of the accused," it was not entirely accurate, but no cause for a new trial, to follow such instruction with the language:

"In other words, the evidence must not only be consistent with this defendant's guilt, but it must be inconsistent with his innocence."

In this connection, see Hamilton v. State, 96 Ga. 301, 22 S.E. 528; Toler v. State, 107 Ga. 682, 33 S.E. 629.

6. The judge read to the jury section 70 of the Penal Code, referring to the defense of justifiable homicide, and the right to kill in defense of habitation, and immediately thereafter charged as follows:

"A felony is an offense punishable by death, or imprisonment in the penitentiary. You will notice that it is only when a felony is intended that a killing is justifiable. If the assailant intends to commit a trespass only--and the court don't mean to intimate that anybody assaulted anybody else,--but if the assailant intends to commit a trespass only, to kill him is manslaughter. If he intends a felony, the killing is self-defense, and justifiable. Therefore it becomes your duty to determine what the intention of the parties was who surrounded Fate Chapman's house and arrested and took charge of some parties therein, as contended by the defendant."

After giving such instruction, the judge did not make it plain to the jury that the instruction above quoted did not apply to the defense of habitation. In the circumstances, the charge above quoted was erroneous. Wall v. State, 153 Ga. 309 (7), 112 S.E. 142; 2 Bishop's Cr. Law, § 1259.

7. The court instructed the jury:

"You will notice that it is contended, among other things, by the defendant in this case, that the sheriff nor any of those with him had any warrant. He contends that there was no law violated, and that under the general law, which I have just read you, there was no legal authority for the sheriff or his posse to make any arrest; that the arrests and attempted arrests were illegal. Of course the court don't mean to intimate whether they were legal, illegal, or

...