Williams v. McCranie

• Decision Date: 18 November 1921
• Docket Number: 12372.
• Parties: WILLIAMS v. MCCRANIE.
• Court: Georgia Court of Appeals

109 S.E. 699

27 Ga.App. 693

WILLIAMS v. MCCRANIE.

No. 12372.

Court of Appeals of Georgia, Second Division

November 18, 1921

Syllabus by the Court.

The court did not err in admitting the testimony of a physician in reference to the opinion given by him as to whether the bullet wound inflicted by the defendant upon one of the plaintiff's witnesses, who claimed to have seen the homicide, had entered from the front or the rear of the witness. This evidence was admissible for what it was worth although the physician testified that he hardly thought he was entitled to an opinion, for the reason that he did not examine the wound at the point of exit; since the question as to whether a witness in a particular instance is qualified to give an opinion is to be determined by the court and is not governed by opinion of the witness himself as to his competency. Glover v. State, 129 Ga. 717, 718(9). 59 S.E. 816. The witness, although an expert, gave his reason for his opinion, as follows: "I can give you my best opinion as I got it from that careless examination. I saw the front of it. Where the bullet goes in, it is always a cleaner cut wound; where it comes out it lacerates the tissues. In other words, the point of entrance is clean cut and smooth and the point of exit is more ragged. The front part of the wound on Josh Terry's head looked pretty smooth to me. I will not say positively about the back part of it, because I was rather careless about my examination. There were blood clots in the back of his hair, but I am not prepared to say that the back part of the wound was lacerated. I will say positively that the front part of the wound was smooth. I have never seen a bullet wound with both a smooth entrance and a smooth exit. The entrance is always smooth."

Exception is taken to the following portion of the charge: "Not only must the killing be in self-defense, but it must be necessary to prevent the attack and injury amounting to a felony on the person killing, or the person killing must really and honestly so believe at the time, and in good faith have acted upon such belief and not in a spirit of revenge." The defendant contends that, since, under Penal Code 1910, § 70, self-defense always justifies, the court improperly placed a double burden upon defendant in thus instructing the jury that there were other things which had to concur in order for the defense to excuse the homicide. This excerpt from the charge, while giving in disjunctive form the doctrines of justification as embodied in both sections 70 and 71 of the Penal Code, does not confuse them. Self-defense does justify but the slayer must be thereby protecting himself from the commission of a felony upon his person, and the taking of human life is not justified as being in self-defense where it is only some lesser injury which by the killing is sought to be avoided. Simmons v. State, 79 Ga. 696(3), 4 S.E. 894; Battle v. State, 103 Ga. 53, 54(4), 29 S.E. 491. As was also in substance further charged in the disjunctive form, the defendant would have been justified if the circumstances were such as to excite the fears of a reasonable man that such a felonious attack upon his person was about to be perpetrated, and in the killing he really acted under such fears and not in a spirit of revenge.

The judge charged in its entirety the substance of the first sentence of section 4425 of Civil Code 1910, as follows "The word 'homicide,' used in this section shall be held to include all cases where the death of a human being resulted from a crime or from criminal or other negligence." While no issue of negligence was in any way involved, either under the pleadings or the evidence "it was not cause for a new trial that the judge read in charge to the jury a Code section, part of which was applicable to the case under consideration and part not; it not appearing that the reading of the inapplicable part was calculated to mislead the jury, erroneously affected their verdict, or was prejudicial to the rights of the complaining party." Eagle & Phenix Mills v. Herron, 119 Ga. 389(3), 46 S.E. 405.

Exception is taken to the following excerpt from the charge: "After you have fixed upon the amount representing the yearly earnings of the deceased and the number of years he would probably have lived, you can by multiplying the one by the other determine approximately what would have been the gross amount of the earnings of his whole life. The gross amount must be reduced to its present cash value, which would necessarily be less than the gross amount, and which may be arrived at by dividing this gross sum by one dollar, plus the legal rate of interest, 7 per cent. per annum, for the expectancy years of the deceased." The exception is without merit, and is admittedly controlled by the ruling of this court, in Standard Oil Co. v. Reagan, 15 Ga.App. 571(5), 589, 591, 84 S.E. 69. "The present worth of a debt payable at some future period without interest is such a sum as being put at interest will amount to the debt at the period when the debt becomes due." Sanford's Higher Analytical Arithmetic, 226. The rule given by this author to obtain the present worth is to "divide the given sum or debt by the amount of $1 for the given time at the given rate; the quotient will be the present worth."

The rule which precludes a witness in a case such as this from proving the amount of damages by a mere general statement would not exclude testimony as to the annual value of the decedent's services, especially where, as here, the witness, who is subject to cross-examination, goes into details as to the facts upon which his opinion is based. Central of Ga. Ry. Co. v. Hartley, 25 Ga.App. 110, 112(4), 103 S.E. 259, 262, and cases there cited. See, also, Wrightsville & Tennille R. Co. v. Gornto, 129 Ga. 204, 206(1), 58 S.E. 769.

The exception taken to the reference by the court to the life expectancy, under the annuity table, "of an average person of the age of deceased," could not justify a reversal on the theory that the court thus inferentially fixed the expectancy of the deceased, especially since the court had already charged that the tables were not binding upon the jury, and that they were not obliged to use them at all, and had previously instructed them that, "if in the case at bar the expectancy of the deceased would, under the evidence, have probably been greater or less than that of the average man, the amount of the damages to be allowed, if any, should be diminished or increased accordingly."

The remaining grounds of the motion for a new trial are without merit. In the judge's statement of the plaintiff's contentions he did not err in including her contention that the deceased was an expert automobile mechanic. A number of witnesses testified as to his mechanical ability in that line. See Napier v. Strong, 19 Ga.App. 401, 409(4), 91 S.E. 579. Nor was it error, especially in view of such evidence, to charge upon what might have been the increased earning capacity of the decedent. The remaining ground of the motion, upon which counsel appear especially to rely, is treated in the opinion.

Error from City Court of Thomasville; H. H. Merry, Judge pro hac.

Action by Mrs. Parrish McCranie against W. W. Williams. Judgment for plaintiff, and defendant brings error. Affirmed.

This was a suit for damages on account of the homicide of the plaintiff's husband, the petition alleging that he was unlawfully and intentionally shot and killed by the defendant, not by the commandment or with the permission of law, and not in self-defense or in defense of habitation property, or person, under any such circumstances as would justify the killing. The defendant, by his original plea, admitted his residence in the county where the suit was brought, admitted the shooting and killing of the plaintiff's husband, and that it was not done by the...