Opinion
35830.
DECIDED SEPTEMBER 28, 1955.
Voluntary manslaughter. Before Judge Humphrey. Toombs Superior Court. June 11, 1955.
J. Ellis Pope, Jackson Graham, for plaintiff in error.
W. H. Lanier, Solicitor-General, Wm. J. Sharpe, contra.
1. The evidence is sufficient to sustain the verdict.
2. The special grounds are without merit for the reasons given in the body of the opinion.
DECIDED SEPTEMBER 28, 1955.
The defendant was indicted for murder and convicted of voluntary manslaughter. He filed his motion for a new trial on the statutory grounds, and added three special grounds by amendment. The court denied the motion for new trial, and the assignments of error made here are on this judgment.
The evidence shows substantially: At the time of the alleged homicide, the defendant was living in what is known as the Cedar Crossing settlement of Toombs County in the house with his wife's mother, Mrs. J. I. Turner. His wife, Ira Mae NeeSmith, is a daughter of Mrs. J. I. Turner. The deceased, J. C. Turner, is a son of Mrs. J. I. Turner. The deceased lived in the same settlement, about three miles from the house wherein Earl Dean NeeSmith lived. Josephine Foster is a niece of Ira Mae, and was spending the night with the defendant and his wife on the night that the alleged homicide occurred. There was some kind of entertainment that night at Hillsdale schoolhouse, located in the same settlement. The defendant, his wife, his mother-in-law and his niece, Josephine, twelve years old, went to this entertainment. The deceased and his wife were also there. After the entertainment was over, the defendant, his wife and children, Josephine Foster, and his mother-in-law went home. Nothing at all unusual happened at the schoolhouse, or until after they had returned home. The deceased and his wife also left after the entertainment was over and returned to their home and went to bed. The defendant and the deceased did not contact each other in any way until the alleged shooting of the deceased by the defendant. After the defendant and his relatives returned from the entertainment, there was some kind of "argument" between the defendant and his wife. The mother-in-law evidently became excited and wanted to go to the home of her son, the deceased. The defendant agreed to carry her there, and they all got in the car and proceeded toward the home of the deceased, located about three miles from Mrs. J. I. Turner's home. Those who started there were the defendant, his wife, Mrs. J. I. Turner (the mother-in-law), the children of the defendant, and the defendant's niece. On the way, and just before reaching the home of Jim NeeSmith, the car in some way got into a ditch, and the defendant, who was driving it, was unable to get it out. The occupants of the car proceeded to walk on to the home of Jim NeeSmith, ahead of the defendant. Mrs. J. I. Turner was doing a lot of hollering and carrying on, the reason for her hysterics not being apparent from the evidence.
Josephine Foster testified that the defendant got mad and ran the car into a ditch on the trip from home to the house of the deceased, and close to Jim NeeSmith's house. She also testified that the defendant had a pistol; that she saw it in his pocket; that he had been drinking and she saw him drink some wine. Jim NeeSmith testified that the defendant had been drinking when he came to the witness's house, but was not drunk. The evidence of drinking was that this witness smelled wine, whisky, or something on his breath. When the car stopped in the ditch, all occupants got out and went on to Jim NeeSmith's house. Later, the defendant came on behind them, and as he approached the house, he shot his pistol, pointed in the direction of the little girl, Josephine, who had one of the defendant's children in her arms. Jim NeeSmith said to him he ought not to be shooting around his house. At the request of the defendant, Jim NeeSmith went with him and Jim's son to help get the car started. They got the car started and the defendant drove it on to Jim NeeSmith's house, and he remained there talking with Jim for ten or fifteen minutes, as to paying him for helping about the car; and the defendant at that time apologized to Jim for anything he had said or done there; and wanted to know where the defendant's wife and children were. By that time, the defendant's wife and children and Josephine had gone on to the home of J. C. Turner, the deceased, walking through the field. Across the field the distance from Jim NeeSmith's to the home of the deceased was about one-fourth of a mile. Around by the road it was about one mile. Mrs. J. I. Turner was still at the home of Jim NeeSmith. After the defendant's wife and children and Josephine had gone to J. C. Turner's house and reported what had happened at the home of Jim NeeSmith, the deceased and his wife went in his truck to Jim NeeSmith's home. The reason why they went was that it was reported that the mother of the deceased, Mrs. J. I. Turner, was dying there; and when they arrived at Jim NeeSmith's, Mrs. J. C. Turner got out of the truck and remained there, while the deceased, J. C. Turner, drove away in the truck, back toward their home, in the same direction from which they had come. At that time the deceased said he was going to call the patrolmen. After she had been there for only a few minutes, she heard someone hollering in front of Jim NeeSmith's house "J. C.'s shot, go to him," and when she ran out there, it was the defendant's wife; Ira Hudson was with her. Then Mrs. J. C. Turner went on back to her house in the truck belonging to her husband, the deceased. Ira Hudson went with her. The defendant's wife was left behind. Mrs. J. I. Turner was still there. Only a very short time elapsed between the time the defendant left Jim NeeSmith's house and the time when the deceased came there, put his wife out, and left, driving his truck back toward their home. Ira Hudson and his wife were sleeping and Ira was awakened by the lights of the truck of the deceased shining in the window of the room. He looked out and recognized the truck. Ira and his wife got up and were dressing when they heard three pistol shots out in or near the front of the house. When they got to the door, the deceased was coming around the end of his truck hollering "He kill't me," and groaning, or making some kind of sound denoting pain. The wounded man came on into the house where he sank on the floor, asked for water, and asked for something to be placed under his head. The wife of the defendant had come there from the house of the deceased, which was only about 150 yards from the Hudson home, and she brought the deceased's shotgun with her. She and Ira Turner then went to the home of Jim NeeSmith and informed the wife of the deceased what had happened. The wife of the deceased got into the same truck, which was the truck belonging to the deceased, and she and Ira Turner went on back to Hudson's house, and soon had the wounded man, the deceased, in the truck and on the way to Conner's hospital at Vidalia, Georgia. Ira Hudson or his wife heard nothing before the shots were fired — no conversation, no loud talking. Hudson testified that any talking out there would have had to be very loud for him to have heard it. They did not see a car ahead of the truck of the deceased at the time. Neither did they see a weapon about the person of the deceased. They saw a white-top car going on down the road beyond their house. This car was ahead of the truck belonging to the deceased. The defendant was driving a white-top car that night. There is considerable testimony to the effect that there is a network of roads in that settlement.
The deceased was carried to Conner Bedingfield Hospital in Vidalia, and was treated for his wounds by Dr. J. I. Conner. He remained there about eleven days and was released. He returned to the hospital for treatment by Dr. Conner about once a week for two or three weeks, and then after that came back about a month later, and then, on or about January 27, 1955, he came back to see Dr. Conner, and Dr. Conner sent him to Dr. Quattlebaum in Savannah, Georgia. In the meantime, and after he was released from the hospital the first time, after eleven days, he went about in his car, driving it, and this continued until he went back to the hospital January 27, about three months after he was shot. Doctor Quattlebaum operated on him, and he died within about thirty-six hours after he was carried to this doctor, early on January 29. Doctor Conner testified that J. C. Turner was brought to the hospital after he was shot; that he had a gunshot wound in his abdomen and also in the chest from a pistol. The two bullets entered from the front. One entered the upper part of his left chest and one was down in the upper part of his stomach or abdomen. One came out the right flank near the right kidney, and the other one came out his back and maybe grazed his arm. The doctor opened the body of J. C. Turner and found that the bullet had gone through his stomach and penetrated his intestines five or six times; that it was a serious wound; that the treatment given was to close up the punctures; he sutured them up, and "treated him as he would be treated anywhere." The doctor stated that he did not trace the other bullet; that the other bullet had gone into the left lung, which had collapsed, but it later expanded, and he did not go into the chest at all; that he believed the deceased stayed at the hospital two or three weeks; that the witness never went to see him after he was removed from the hospital; that the patient came in every week for him to check for a period of two or three weeks, then four weeks later came back, and then came back the time the doctor sent him to Savannah. The last time he came back, "he had locked bowels, his bowels were locked. Adhesions had formed from infection of these wounds." The witness thought that the adhesions that caused the bowels to lock resulted from the wounds received in the beginning. The doctor kept the patient there that time approximately forty-eight hours, and then sent him to Savannah to Doctor Quattlebaum. The purpose for which he sent him down there was "for treatment and diagnosis. I couldn't determine exactly what, you know, I don't know, or I didn't know at the time where it was, in other words, it was sort of a mysterious case to me at the time, all the couplings and everything, so we sent him down there." The witness was under the impression that the deceased lived approximately thirty-six hours after he was sent to Savannah; he did not see the patient any more after he was sent to Savannah. The cause of the death was locked bowels. The adhesions from the gunshot wound closed it up. On cross-examination, the doctor testified that he could not swear of his own knowledge that the locked bowels caused the death of the deceased.
The defendant made the following statement: "I am charged with murder which I am not guilty of. I am not guilty of no crime. It is true I shot J. C. Turner, I shot him to save my own life. On the night of October the 29th I come in from my work, I work on the railroad. My wife and my mother-in-law, Mrs. Turner, and my two little young'uns and Josephine wanted to go to a play at Hilldale school house. I didn't want to go, I was tired. So she kept on insisting until I give in. So after the play we come back home. So me and my wife had a little argument. So Mrs. Turner, my mother-in-law, she wanted us to take her to J. C.'s. I didn't want to take her but she insisted me to take her. So we all got out to the car and was going to J. C.'s to take Mrs. Turner. Just before we got to Jim NeeSmith's house the car knocked off. So they got out and hollered and went up to Jim's house. Pretty quick I got out and I went up to Jim's house, and asked Jim about pulling my car off to help me crank it. He said, `All right.' We got out there and got the car cranked and I asked Jim which way did my wife and children go and he said, `They went through the field.' So I turned around my car, went back to the house, stayed at the house about five minutes and come back by Jim NeeSmith's house and just as I passed Jim NeeSmith's house I met a truck. And I went on down the road, I was driving slow. Pretty quick I seen a car coming behind me, truck, it was coming behind me, run up and caught up right beside of me and tried to get out around me, raced his motor, dim his lights, I didn't know what he wanted. I recognized his truck and went on up the road past his house. He went out around me and stopped me and come back running where I was at, jerked my car door open and he said, `God damn, son of a bitch, I am going to kill you.' And he come in there on me cutting me with a knife. He cut the first time I lay down in the seat like that and he cut me again and I was still laying down in the seat and reached over in the pocket of the car and got my pistol and I shot him. I shot him twice. I shot him to save my own life. Gentlemens, I never had no trouble with him no way at all. He was a good a friend as I had and what he wanted to kill me for I don't know. And, gentlemen, I just want you all to give me mercy, I got a wife and two little young'uns."
It might be well in this connection to call attention to the fact that the defendant never exhibited any cuts or scars, nor offered any evidence to show that he was ever cut. One of the State's witnesses, Eugene Willis, stated that the defendant inquired of the witness as to the sentiment of the people regarding the defendant's killing the deceased. In the conversation the defendant stated "That he shot the boy [meaning the deceased] uncalled for."
1. The evidence is sufficient to sustain the verdict.
2. Special ground 1 assigns error on the following excerpt from the charge of the court: "Manslaughter is the unlawful killing of a human creature without malice, either expressed or implied, and without any mixture of deliberation whatever which may be voluntary upon a sudden heat of passion, or involuntary in the commission of an unlawful act or lawful act without due caution and circumspection. In all cases of voluntary manslaughter there must be some actual assault upon the person killing, or an attempt by the person killed to commit a serious personal injury on the person killing or other equivalent circumstances to justify the excitement of passion and to exclude all idea of deliberation or malice either expressed or implied. Provocation by words, threats, menaces or contemptuous gestures shall in no case be sufficient to free the person killing from the guilt and crime of murder. The killing must be the result of that sudden violent impulse of passion supposed to be irresistible, for if there should have been an interval between the assault or provocation given and the homicide, of which the jury in all cases shall be the judges, sufficient for the voice of reason and humanity to be heard, the killing shall be attributed to deliberate revenge and be punished as murder. In other words, voluntary manslaughter is the intentional killing of a human being, or the killing of a human being by the use of a weapon that as used is likely to kill, but a killing under circumstances to justify the excitement of passion and to exclude all idea of deliberation or malice either expressed or implied."
Error is assigned on this excerpt because, as contended by the defendant, there was no evidence to authorize the charge of voluntary manslaughter. We have set out the evidence and the statement of the defendant in detail, and from such we conclude that the evidence authorized the charge of voluntary manslaughter. It is a well-settled principle of law that a jury is authorized to believe the defendant's statement in whole or in part. In reaching the verdict returned they could have believed, from the statement of the defendant, that the deceased made an assault upon the defendant; and, on the other hand, they could have disbelieved that part of the defendant's statement wherein he claimed that the deceased cut him with a knife. The jury were justified in refusing the latter part of the statement because the defendant showed no cuts or scars, did not mention any cuts when he told a relative of the deceased that he shot the deceased "uncalled for." If there is anything deducible from the defendant's statement tending to show that he is guilty of voluntary manslaughter, or sufficient to raise a doubt as to whether or not the homicide is voluntary manslaughter or murder, a charge on the law of voluntary manslaughter is required and a conviction of that offense is authorized. See Albert v. State, 70 Ga. App. 39 ( 27 S.E.2d 249) and Watkins v. State, 76 Ga. App. 877 ( 47 S.E.2d 602). Counsel for the defendant call our attention to numerous decisions in support of the contention, as follows: Branch v. State, 5 Ga. App. 651 (1) ( 63 S.E. 714); Rivers v. State, 24 Ga. App. 365 ( 100 S.E. 796); Dyal v. State, 97 Ga. 428 ( 25 S.E. 319); McBeth v. State, 122 Ga. 737 ( 50 S.E. 931); and James v. State, 123 Ga. 548 (1) ( 51 S.E. 577). This principle of law is correct, as set forth in the cases cited, but the difficulty involved in following this contention is that, as we construe the evidence, the evidence authorized a verdict of voluntary manslaughter. There is no merit in this contention.
3. Special ground 2 assigns error because the court charged as follows: "Provocation by words, threats, menaces, or contemptuous gestures shall in no case be sufficient to free the person killing from the guilt and crime of murder." It is contended that this charge should have been qualified by a charge that a killing may be justified if the circumstances were such as to induce reasonable fears in the mind of the defendant that he was in danger of losing his life or of having a felony committed upon him; that the case sets forth the defense of justifiable homicide — self-defense — but that the failure of the court to qualify the charge was error harmful to the defendant, so as to demand a reversal of the case. There is no merit in this contention.
4. Special ground 3 assigns error as follows: "On a prosecution for murder or manslaughter, the accused would not be relieved of responsibility of the death of the deceased, though you may find the wounded person may have died from some intervening cause provided the wound inflicted by the accused, if the wound was inflicted by the accused, really contributed to the death of the deceased, and but for said wound the deceased would not have died." Counsel admits that the charge was correct as an abstract principle of law, to which we agree. We might state in this connection that, as related above, the jury were authorized to believe the defendant's statement in whole or in part. There is one fact, in connection with this ground and with the whole case, which distinguished counsel fails apparently to consider. This principle is that, in a case of homicide when the State proves that the killing was done by the defendant, this makes out a prima facie case of illegal homicide, and the burden shifts to the defendant to show that he was justified in the killing. Under the evidence, there can be no doubt that the State proved that the defendant killed the deceased. Thus the State made out a prima facie case that the killing was unlawful, and the burden shifted to the defendant to prove that he was justified in taking the life of the deceased. We do not mean to say that the ultimate burden upon the State was changed by proof of the killing. However, the law is that the State must prove ultimately that the killing was done with express or implied malice, and if the evidence of the State in proving the killing reveals that, along with the killing, there were mitigating circumstances, then the prima facie case is not made out by the State. Under the evidence in this case, there were no circumstances revealed either in the evidence or the defendant's statement, properly construed, that the defendant was justified in taking the life of the deceased. It therefore follows that when the State proved the killing, the burden of procedure shifted to the defendant to show that he was justified. He introduced no evidence along this line, and depended entirely upon his statement to prove that he was justified in the killing. We will state here that Dr. Conner testified positively that he first operated on the deceased and found that there were five or six penetrations of the intestines of the deceased, and that the adhesions caused by the gunshot wounds were the cause of the locking of the bowels, and that Dr. Conner sent the deceased to Savannah, Georgia, for treatment by Dr. Quattlebaum. Dr. Quattlebaum was not introduced as a witness. The record does not disclose why he was not introduced or whether or not he was available. Counsel for the defendant places much stress upon the cross-examination of Dr. Conner, to the effect that he did not know whether or not the bowels of the deceased were locked as a result of the gunshot wound. When the State proved the homicide by the defendant (the defendant in his statement admitted the killing), the burden of procedure shifted to the defendant. It was then up to him to overcome the prima facie case of the unlawful killing which the State made and prove his justification of the homicide. If he desired Dr. Quattlebaum or any other doctors to testify, it was up to him to produce such evidence as would show his justification. The purposes of the law for obtaining witnesses are equally as potent as to the defendant as to the State. As to the principle of the burden shifting to the defendant after the homicide is proved, see Bell v. State, 69 Ga. 752 (2a), wherein the Supreme Court said: "After charging the law of murder and the different degrees of manslaughter, and stating the presumption in favor of the defendant, there was no error in charging that such presumption might be removed by proof of the fact of the killing as charged in the indictment, and the onus be shifted to the defendant to show that it was justified, or constituted a less offense than murder, that being the crime charged in the indictment."
The court did not err in denying the motion for a new trial for any of the reasons assigned.
Judgment affirmed. Townsend and Carlisle, JJ., concur.