Wilson v. State

• Citation: 10 S.E.2d 861,190 Ga. 824
• Decision Date: 26 September 1940
• Docket Number: 13406.
• Parties: WILSON v. STATE.
• Court: Supreme Court of Georgia

10 S.E.2d 861

190 Ga. 824

WILSON v. STATE.

No. 13406.

Supreme Court of Georgia

September 26, 1940

Robert Wilson was found guilty, with a recommendation, of the murder of Eva Josey. The indictment charged that on January 31 1937, he did 'unlawfully and with force and arms feloniously, and with malice aforethought, with an axe hatchet, wooden bludgeon, piece of iron, piece of steel, and other blunt and sharp instruments, which he had and held, the same being a weapon likely to produce death, make an assault' upon her, and 'strike, beat, cut, and wound [her] thereby giving [her] a mortal wound, of which wound [she] then and there died.' The evidence showed that the wounds of the head, which the State contended caused death, were inflicted on January 31, and that the deceased died on October 4, 1937. A deputy sheriff testified that he found the deceased about ten o'clock at night in a house where, according to other testimony, she had been living with the defendant, in a desperately wounded condition, lying on her face with feet tied together by a large cord; that a trial of blood looked like she had been dragged from the next room; and that he could find no weapon. The brother of the deceased testified to the same effect; that he had seen the defendant and the deceased together in the house at about seven o'clock that night; that he had lent his hatchet to the defendant, and it had not been returned; that he had a conversation with the defendant, after an arrest, three years later, in which the defendant said he had gone to Florida, 'was scared and run off,' and told the witness 'he done it with the hatchet,' but would not tell him 'what he did with the hatchet.' While the mother of the defendant testified that she had seen the deceased walking on the street, after being confined in a hospital for several months, the other testimony showed the desperate nature of ten or more hatchet wounds on the head, a fracture of the skull, which 'caused the brain to be exposed to infection,' continual loss of blood, and helplessness both at the hospital and at her home. One of the attending physicians testified that her case 'was hopeless from the time I saw her.' While the testimony showed that the immediate cause of death was an infected lung or a gangrenous abscess of the lung, three physicians testified for the State as shown in the opinion, infra. Dr. J. C. Anderson, after testifying as to facts, stated: 'I would say that this infection was secondary to the infected wounds that she had at the beginning. The primary cause of her trouble would be the wounds on the head * * * in my opinion in this case * * * the abscess was not the primary cause of death.' Dr. J. L. Gallimore, describing her condition, said: 'I think her final condition was secondary to the wounds she received. I think her final demise [came] up probably to that.'

Dr. J. B. Holmes, who attended her after she was readmitted to the hospital a few weeks before her death, testified that 'the hatchet wounds on her head caused the brain to be exposed to infection,' that her 'low resistance was caused from the injuries she had received, the injuries causing a shock,' and that 'the infection is secondary to that, and the gangrenous condition was secondary to that.' There was additional expert testimony as to the condition of the deceased and the nature of a gangrenous abscess of the lung.

The defendant stated to the jury that after the deceased had accused him of moving her money, she said, 'I don't want to start any cemetery of my own,' threw a hatchet at him, which he caught on his arm, and 'started on [him] with an ice-pick;' that he told her, 'Don't come on me,' and 'I could not dodge and I could not get out, and that is the reason I hit her.' He denied tying her feet; denied saying anything to the brother of the deceased, except that he had been to Florida; and said that the only statement he had made about his trouble with the deceased was to the arresting officer, and that he told this officer that he hit the deceased because 'she was after me with an ice-pick and I had to defend himself, [sic]' and had gone away because of his fear of the two brothers of the deceased.

As to the relation between the wounds and death, the court instructed the jury: 'I charge you, however, that if you do believe beyond a reasonable doubt that the defendant inflicted a grievous wound or wounds upon the deceased, as alleged in the indictment, in order for you to attribute the death of the deceased to the defendant it is not necessary that said wound or wounds be in themselves mortal, but it is sufficient if it or they were the primary cause which produced other and secondary causes from which the death of * * * the person named in the indictment resulted. If you find that the defendant inflicted a grievous wound or wounds upon the deceased under circumstances which rendered the defendant criminally liable for some grade of offense for the death of the deceased, the defendant would be guilty of homicide, either murder or manslaughter, though you might find that the person wounded may have died from other causes set in motion by the said wound or wounds, or would not have died from said wound or wounds had not other natural causes operated with it; provided the said grievous wound or wounds so inflicted by the defendant, if any was inflicted by him, were inflicted in the manner alleged in the indictment and contributed mediately or immediately to the death of the deceased.' The exceptions to this charge are that it instructed the jury that they could find the defendant guilty, even though the wound inflicted by him was not mortal, and even if the deceased died from natural causes operating with grievous wounds, and omitted any reference to improper medical treatment, or to 'any act of the deceased which may have directly caused death, or whether or not the natural causes would have produced death independently of the wounds;' and that 'the act of the defendant must be the direct, the immediate, the proximate cause of death, and if other independent causes preponderated largely as to the real, the efficient, and proximate cause, then the act of the defendant would be too remote to be considered the direct and proximate cause, whereas, under the charge, if the act of the defendant was a remote cause, an indirect cause, too remote to be the real, direct, proximate and efficient cause of death, yet the jury might find the defendant guilty.'

Immediately preceding the quoted excerpt the judge charged that 'the State must prove beyond a reasonable doubt, not only that the defendant inflicted a grievous wound or wounds upon said deceased in the manner and as alleged in the indictment, but also that death actually resulted from said wound or wounds so inflicted.' Immediately following the excerpt he charged: 'However, * * * even though you do find that the defendant did inflict a grievous wound or wounds upon the deceased for which the defendant would be criminally liable for some offense, yet if some intervening cause not set in motion by said wound or wounds caused the death of the deceased, then the defendant would not be criminally liable for said death; or if said wound or wounds did not contribute directly and thereby legally cause the death of the deceased, the defendant would not be criminally liable for said death.' Later he charged, that 'the burden is on the State to show that the death resulted because of said wounds inflicted * * * by the defendant;' that if the jury believed that 'the wounds were not the primary cause of her death, but that her death resulted from other other diseases not attributable to any wounds which the defendant may have inflicted, then the defendant cannot be convicted of the homicide,' and 'if you believe the primary cause if the death of the deceased was some other disease, either tuberculosis or syphilis or any other disease causing her death from natural causes, and the primary and proximate cause of her death was some disease naturally producing death, then the defendant is not guilty of the homicide.' He also told the jury that the burden was on the State to show that 'some violent act of the defendant was the primary and efficient cause of her death;' that the wound or wounds must have 'caused the death of the deceased,' and must have been 'the primary cause which produced or set in motion other and secondary causes from which the deceased died.'

The charge referred to in divisions 9 and 10 of the opinion, as to the presumption of malice, was as follows 'The law presumes every intentional homicide to be malicious until the contrary appears from the circumstances of alleviation, or justification, or mitigation or excuse; and I charge you that the burden is on the slayer, whenever an intentional homicide has been proved, to make out such circumstances of justification or excuse or alleviation to the reasonable satisfaction of the jury, unless they appear from the evidence produced against the defendant or slayer. If, however, the proof shows that the killing itself was done without malice, this presumption that the homicide was malicious does not exist, and the burden would be on the State to prove malice beyond a reasonable doubt; but if the accompanying proof does not disclose that an intentional homicide, if any, was done without malice, then the burden is upon the slayer to show that it was done without malice. I charge you, however, that this presumption which arises against the slayer where an intentional homicide is shown does not arise against the defendant unless it be first shown beyond a reasonable doubt that the defendant is the slayer. Unless it appears beyond a reasonable doubt that this defendant is the slayer, this presumption does...