Wilkerson v. State
| Decision Date | 26 July 1893 |
| Citation | 17 S.E. 990,91 Ga. 729 |
| Parties | WILKERSON v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. If a husband, knowing of his wife's criminal infidelity deliberately lays a trap for her paramour by pretending to him and her that he (the husband) is going on a journey, when it is his purpose not to go, but to conceal himself and lie in wait at or near his home, for the purpose of killing the paramour in case he should be caught in the guilty act, at the same time expecting and designing so to catch him, the paramour has a right to defend himself against a deadly assault made by the husband under such circumstances, though the assault be made while the guilty act is in progress; and if the husband be killed as matter of necessity, to prevent his assault from resulting in death, the homicide is justifiable.
2. Under section 3797 of the Code, which declares that, from public policy, communications between husband and wife are excluded as evidence, a letter written by the husband to the wife, and received by her, which indicates the state of his feelings towards a third person, and towards herself in relation to that person, is not admissible in evidence in behalf of such third person on his trial for the homicide of the husband, although the wife voluntarily parted with the possession of the letter by turning it over to the accused before the homicide, and the latter has had possession and control of it ever since.
3. In a trial for murder, dying declarations are admissible to prove any relevant fact embraced in the res gestae of the killing.
Error from superior court, Floyd county; W. M. Henry, Judge.
Frank C. Wilkerson was convicted of murder, and brings error. Reversed.
Reece & Denny and J. Branham, for plaintiff in error.
W. J Nunnally, Sol. Gen., and J. W. Harris, Jr., for the State.
1. The tragedy disclosed by the record in this case is in every way deplorable. It presents a singularly striking instance of human death and misery resulting from human misconduct. The trial of such a case imposes upon the parties concerned on both sides, the witnesses, the jurors, the counsel, and the courts, the performance of most painful duties. We deeply regret the necessity which requires us to deal with questions of the kind now before us, but we shall not shrink from plainly laying down the law as we understand it to be after anxious and careful examination. The evidence is exceedingly voluminous, and in many respects conflicting. It tends to show, almost beyond the possibility of question, that, for many months before the homicide of Stephens, adulterous relations had existed between his wife and his slayer. It also tends strongly to show that this was certainly known to Stephens, and that, if he did not actually connive at it, he at least tolerated it. According to the statement made by the accused, the deceased knew of the illicit intercourse, and practically assented to it. There is undisputed sworn testimony showing that Stephens had in his possession, for months before he was killed, a letter his wife had written the accused, and which he (Stephens) had taken from the trunk of the latter; and that, for nearly a month before the killing, Stephens also had in his possession a letter which the accused had written to Mrs. Stephens, and which Stephens intercepted before its delivery to her. These letters were in his pocket, and were taken from it after he was fatally shot. Their contents show, almost indubitably, that the writers had been sustaining towards each other the most affectionate, intimate, and guilty relations. Besides, there was much testimony as to numerous incidents and circumstances which, if true, would conclusively establish that Stephens, for a considerable time before the homicide, absolutely knew his wife and Wilkerson had been constantly and repeatedly committing adultery with each other; that, in the face of this knowledge, he persisted in requesting Wilkerson to remain in his employment when the latter wished to go away, and frequently expressed a purpose to do so; and that Stephens, under these circumstances, allowed Wilkerson free access to his house and family, permitted him to take his meals there as a boarder, and maintained towards him a kind and friendly demeanor. As the case must be tried again, we do not wish to be understood as stating as an undisputed fact that Stephens did know, for some time before he was killed, of his wife's adultery with Wilkerson. On the contrary, the state strenuously contended that he did not; that he merely suspected her guilt; and that he laid a trap to verify the correctness, of his suspicions, and, finding them well founded shot and undertook to kill the adulterer as soon as the discovery was made. We have therefore, with great brevity, simply undertaken to set forth enough to show that there was strong evidence to support the contention of the defense that the deceased knew with certainty of his wife's infidelity to him and of her adultery with Wilkerson, and that he laid the trap, not for the purpose of proving the correctness of mere suspicions, but for the deliberate purpose of catching and surprising his wife and her paramour in an act of which he already knew they had been repeatedly guilty, and then killing the paramour,--not to prevent the adultery, but to obtain revenge upon the adulterer. The contentions of the state and the accused were as above stated. What the real truth is we do not decide, but we leave open for determination by the jury, at the next hearing, the vitally important issue thus made.
The motion for a new trial contained a large number of grounds. Error was assigned upon numerous charges and the refusal of numerous requests to charge. It is not necessary to state or discuss them in detail. The law of the case upon the controlling question involved is stated in the first headnote. The evidence is conflicting as to the attitude of Mrs. Stephens and Wilkerson towards each other at the moment Stephens appeared on the scene and began to fire. The state contends that they were in the very act of adultery, and the accused contends their conduct on that occasion was free from all guilt, both in act and intention. Taking the entire charge of the court, in connection with the refusals to charge, it will appear that the trial judge was of the opinion that if Stephens came suddenly upon his wife and Wilkerson, and found them in the act of adultery, or under circumstances indicating that the adulterous act was just over or about to begin, he would be perfectly justifiable in killing Wilkerson on the spot, although he, (Stephens,) with actual knowledge of their previous guilt, had laid a plan to bring them together for the express purpose of killing Wilkerson. The jury were instructed to this effect, and were nowhere instructed that if Stephens knew of his wife's infidelity, and laid a trap to catch Wilkerson in the act of adultery with her, expecting and designing to so catch him and intending then and there to kill him, he (Stephens) would not be justified in so doing. We think the accused was entitled to a charge of the kind just indicated, with the additional statement that, if Stephens was not justified in shooting Wilkerson, the latter had a right to defend himself from a deadly attack by Stephens, and, in our judgment, a new trial should be granted because such a charge was not given. Drysdale v. State, 83 Ga. 744, 10 S.E. 358, does not in the least conflict with this view. In that case it was held that "a husband may attack for intimacy with his wife, in his presence, raising a well-founded belief that the criminal act is just over or about to begin, and the adulterer, though in danger, has no right to defend himself by using a deadly weapon," for the reason, as stated by Chief Justice Bleckley, "that, whatsoever...
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