Wick v. State, 15115.

CourtSupreme Court of Georgia
Writing for the CourtATKINSON
Citation34 S.E.2d 28
Docket NumberNo. 15115.,15115.
Decision Date03 April 1945
Syllabus by the Court.

1. In a trial for murder, the general character of the deceased for turbulenceand violence may be shown, where there is evidence tending to show that at the time of the homicide the deceased was making an assault, or was in some way the aggressor. But to prima facie establish the deceased as the aggressor, in order to lay the foundation for the introduction of such evidence, it is necessary to do so by evidence other than the statement of the accused, as such statement cannot lay the foundation for introducing evidence to show the character of the deceased for violence and turbulence. General bad character of the deceased for violence cannot be established by proof of specific acts. No proof of specific acts is admissible even after evidence of general bad character for violence has been produced, or after an issue of good or bad character for violence has developed, except, of course, upon cross-examination by the opposing party.

2. If a person intentionally kills another unlawfully, and there is neither mitigation nor justification, malice is established, whether the killing be done with a weapon likely to produce death or in some other manner.

3. It is not for the court to determine whether the limb of a tree is a weapon likely to produce death. This is a question for the jury.

4. A written request to charge should be in such form and phraseology as could be read by the judge as an understandable, part of his instructions to the jury.

(a) An assignment of error "in refusing and failing * * * to charge along similar lines [the law of involuntary manslaughter in the commission of an unlawful act] in the general charge, said failure being prejudicial and harmful to the defendant, although said charge was demanded by the evidence;" is incomplete and too vague and indefinite to constitute a proper assignment.

5. The court having charged fully upon the subject of the presumption of malice where the homicide is established and no alleviation or justification is shown, it was not error to fail to give a more detailed charge upon the subject in the absence of a timely written request therefor.

6. In charging upon the law of impeachment of witnesses, where the court charges as to impeachment by disproving facts testified to, and by contradictory statements, it is not error, but is proper, to omit to charge the law of impeachment by proof of general bad character, where there is no evidence seeking to impeach any witness upon that ground.

7. A request to charge should itself be correct, and even perfect; otherwise the refusal to give it will not be cause for a new trial.

8. In charging the jury upon the law of incriminatory admissions, it is correct to say they should be "scanned with care, " and incorrect to add that they should be "received with great caution"; yet such inaccuracy is favorable to the accused and affords no ground for complaint.

(a) If a written statement, considered as a whole, was a confession and not an admission, yet it incorporated therein assertions, which, considered separately, were definite incriminatory admissions, it would not be cause for a reversal for the court to charge the law of admissions, where there is no error of law in the terms of the abstract instructions.

(b) The omission to charge the law of confessions, in the absence of a timely written request, where there is other sufficient evidence to authorize a conviction, is not error.

9. Under the provisions of the Code, § 38-415, relating to the prisoner's statement, a person on trial has the right for his statement to be heard by the jury, and there are instances in which the only means of so doing would be through the voice of another; but rulings upon this privilege must necessarily be vested in the sound legal discretion of the trial judge, whose discretion will not be disturbed unless manifestly abused.

10. Assuming that the ruling in the case of Strickland v. State, 167 Ga. 452(6), 145 S.E. 879, prohibiting a written dying declaration from going out with the jury during their deliberations, would be applicable to written incriminatory admissions or confessions, yet, in the instant case, where documents containing such admissions or confessions were admitted in evidence without objection, and no motion was subsequently made as to prohibiting the documents from being considered by the jury during their deliberations, the court did not err in overruling the motion for new trial on this ground.

(a) Neither was there any violation of the rights of the accused under the provisionof the due process clause of the constitution of the United States, contained in the Code, Amend. 14, § 1-815; nor under the constitution of the State relating to a public and speedy trial by an impartial jury as provided in Art. 1, § 1, par. 5, § 2-105.

11. The evidence was sufficient to authorize the verdict. None of the other grounds of the amended motion, referred to in the corresponding division of this opinion, requires a new trial.

Error from Superior Court, Chatham County; VVm. Hugh Stephens, Judge.

Albert E. Smithwick was convicted of murder, and he brings error.

Judgment affirmed.

The accused was convicted of murder and sentenced to electrocution. A summary of the evidence relied upon by the State is is follows: Albert E. Smithwick, the accused, had been paying some attention to Viola F. DeLoach, the common-law wife of Julian E. DeLoach, the deceased. About midnight of the night of the homicide, the accused was passing through Telfair Square in the City of Savannah, and the deceased drove up in an automobile with Viola DeLoach and some argument over her ensued. The accused then got into the back seat of the car. Viola DeLoach was driving, and the deceased sat beside her on the front seat. While driving in the city the deceased continued the argument about her. They then drove out the Ogeechee Road, and while there the deceased called the accused a

damn lying s---- of a b----. The accused

requested the deceased not to call him that, to which the deceased replied: "I'll call you a s. of a b. any time that I want to and there is nothing that you can do about it." The accused then hit the deceased with a black jack and kept on hitting him --hit him about a half dozen times. As the car turned around the deceased opened the back door and fell out. The accused struck him again with the black jack while he was on the ground. The accused picked up the deceased and threw him in the back of the car. The accused thought he had killed the deceased. They drove out to another place and stopped, where the accused washed his hands at a well. As he got back in the car, he felt the seat move and found the deceased breathing and trying1 to get up. The accused then sought to "finish it, " broke a limb from the side of the road, and struck the deceased once as he was lying in the car. The limb was thrown away. The deceased still was not dead, a second limb was broken off, and being struck with this limb (the number of times not appearing), he died.

No description of the black jack appears in the record. One of the sticks was described as 49 inches in length, 51/2 inches around the largest point, tapering down, and weighing about 5 pounds. The other stick was described as being a little smaller and weighing about 3 pounds.

After the killing, the body of the deceased remained in the car, which was driven back to Savannah, where the accused got out. Viola DeLoach then drove to another section of the city and left the car with the deceased in the rear. From this point she walked to another place where she caught a cab for her home.

About 8 a. m., the body was discovered in the car, where it had previously been left by Viola DeLoach. The body was described as having multiple head wounds, with the skull fractured in several places.

Following the arrest of the accused shortly after the body was found, he made a written statement in which, after relating the details of the beating as above set forth, he asserted: "I felt that Julian was going to kill me, as he accused me of things that I was not guilty of about his wife, and I felt that I would have to kill him or be killed."

The written statement of Viola DeLoach was introduced by the State, and though in the main similar to the written statement of the accused, it added that, after the deceased cursed the accused and the first lick was struck by the accused, "Julian turned around and they were hitting one another;" that "when they were tussling, Julian got into the back seat;" and also that she and the deceased started to drinking about 10 a. m. that morning.

In his statement to the jury, no details of the homicide were related, but the accused said: "I did it and had it to do. I want you to understand I had to do it or get what he did."

Aaron Kravitch, of Savannah, for plaintiff in error.

Sam A. Cann, Sol. Gen., and Andrew J. Ryan, Jr., both of* Savannah, T. Grady Head, Atty. Gen., and Maud Saunders, of Atlanta, for defendant in error.

ATKINSON, Justice (after stating the foregoing facts).

1. The first ground of the amended motion for new trial alleges error in the court's refusal to allow the accused to produce evidence that the deceased had previously made assaults upon some other person, the objection by the State being to the effect that it was an effort to establish general bad character of the deceased for violence by proof of specific acts.

In a trial for murder, the general character of the deceased for turbulence and violence may be shown, where there is evidence tending to establish that at the time of the homicide the deceased was making an assault, or was attempting to commit violence upon the accused, or was in some way the aggressor. But to prima facie establish the deceased as the aggressor, in order to lay the foundation for the introduction of such evidence, it is necessary to do so by evidence...

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6 cases
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    ... 34 S.E.2d 28 199 Ga. 292 SMITHWICK v. STATE. No. 15115. Supreme Court of Georgia April 3, 1945 . .          Casemaker. Note: Portions of this opinion were specifically rejected by. a higher ......
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