Wheeler v. State

• Decision Date: 29 October 1900
• Citation: 37 S.E. 126,112 Ga. 43
• Parties: WHEELER v. STATE.
• Court: Georgia Supreme Court

37 S.E. 126

112 Ga. 43

WHEELER v. STATE.

Supreme Court of Georgia

October 29, 1900

Syllabus by the Court.

1. Where counsel for one on trial for murder, requested, in writing, the court to give in charge to the jury section 71 of the Penal Code, "and, in the course of his oral argument, *** requested the court to give to the jury in charge the sections of the Code in reference to justifiable homicide," the oral request, fairly interpreted, should not have been held to mean more than that the court was asked to give in charge so much only of those sections as was under the evidence and the statement of the accused pertinent and applicable to the case on trial.

2. There was nothing either in the evidence or the statement of the accused which warranted the judge in charging the law contained in section 73 of the Penal Code, and his doing so was, therefore, erroneous.

3. While it is not competent to impeach a witness by proving that he has led a life of moral turpitude or has been guilty of immoral acts, a witness whose own testimony discloses that such are the facts with respect to his life and conduct may be thereby discredited; the jury being left free to determine for themselves what weight and effect should be given to such facts. (a) While the instructions on this subject of which complaint is made in the present case were not technically correct, they were not, as applied to the evidence actually before the jury, substantially out of harmony with what is above announced.

4. Under the evidence in the case, there was no error in instructing the jury as follows: "You have a right to consider the circumstances and condition of any witness, as proven to have been at the time of the incidents about which said witness testifies. You may consider such condition of any witness as to soberness; the surroundings of such witness, with reference to determine whether or not such witness was in a condition to see and understand what was occurring."

5. Declarations made by one actually in a dying condition, and conscious of the fact, are admissible as dying declarations notwithstanding the fact that a physician, either before or after such declarations were made, informed the declarant that there was a chance for him to recover.

6. Whether, after certain declarations were, without objection, admitted as a part of the res gestæ, it was or was not proper for the court to leave to the jury the question of their competency, so doing was certainly not erroneous, as against one holding the position that such declarations were incompetent evidence.

7. It is not erroneous to refuse to allow a witness to testify to his opinion as an expert, when it does not affirmatively appear that he is an expert with respect to the matter in which his opinion is sought.

Error from superior court, Fulton county; J. S. Candler, Judge.

Ike Wheeler was convicted of voluntary manslaughter, and brings error. Reversed.

Arnold & Arnold and Felder & Rountree, for plaintiff in error.

C. D. Hill, Sol. Gen., and W. D. Albert, for the State.

FISH J.

Ike Wheeler was convicted of voluntary manslaughter, for the killing of John C. Hambrick, and, upon the overruling of a motion for a new trial, excepted.

1. The first ground of the amended motion for a new trial complained that the court erred in charging section 73 of the Penal Code, viz.: "If a person kill another in his defense, it must appear that the danger was so urgent and pressing at the time of the killing, that, in order to save his own life, the killing of the other was absolutely necessary; and it must appear, also, that the person killed was the assailant, or that the slayer had really and in good faith endeavored to decline any further struggle before the mortal blow was given." The trial judge, in approving this ground of the motion, stated that: "The charges which are complained of in the first and third grounds were requested by defendant's counsel as follows: Section 71 of the Penal Code was requested to be given in writing, and, in the course of his oral argument, defendant's counsel requested the court to give to the jury in charge the sections of the Code in reference to justifiable homicide. Under the written and oral requests, I gave the charge,--the first ground as amended motion." We think the oral request made by counsel during his argument to the jury, fairly interpreted, should not have been held to mean more than that the court was asked to give in charge so much only of those sections as was, under the evidence and the statement of the accused, pertinent and applicable to the case on trial. The rule is that all requests to charge should be in writing, and even if counsel for the accused could be held bound by an oral request to charge, made during his argument to the jury, this should not be done unless the request was made in unequivocal terms. To charge the section quoted was not only unauthorized by the evidence, but was against the interest of the accused; and there should be no presumption that his counsel, by a mere general request to charge the law of justifiable homicide, meant to ask the court to give this section in charge to the jury.

2. The court erred in giving in charge the provisions of section 73 of the Penal Code. We have critically examined the evidence and the statement of the accused, and can find...