Opinion
14937.
SEPTEMBER 6, 1944.
Murder. Before Judge Davis. Newton superior court. April 25, 1944.
Reuben M. Tuck and C. L. Redman, for plaintiffs in error.
T. Grady Head, attorney-general, Roy Leathers, solicitor-general, and Victor Davidson, assistant attorney-general, contra.
1. The verdicts of the jury finding the defendants guilty of murder were authorized under the evidence for the State showing that they willfully and maliciously inflicted upon the deceased a wound from which death resulted.
( a) The fact that the deceased contracted pneumonia after leaving the hospital where he was treated for the wound inflicted by the defendants does not affect the question of the guilt of the defendants, where the uncontradicted testimony of the attending physician shows that the pneumonia was superinduced by the weakened condition of the deceased, resulting from his wound, and that death would have resulted from the wound regardless of the pneumonia.
2. The charge instructing the jury as to the rule of law applicable where death results from a wound as the primary or secondary cause of death, which is conceded to be a correct statement of the law, was not erroneous in that it excluded from the consideration of the jury independent or natural causes from which death resulted. Indeed, its plain meaning is that convictions would not be authorized if death resulted from natural causes independently of such wounds as the defendants might have inflicted. Nor was it error, in the absence of a timely request, to fail to specifically so charge.
3. Where a ground of a motion for new trial is not approved by the trial judge, it can not be considered by the Supreme Court.
( a) Neither extrinsic evidence which tends to prove the ground, nor such evidence which tends to disprove it, will be considered.
No. 14937. SEPTEMBER 6, 1944.
Tommie Singley and Eddie Holcomb were jointly indicted and convicted, with a recommendation of mercy, for the murder of Anderson Kirkus. They except to the overruling of their amended joint motion for a new trial. The defendants offered no evidence and made no statement to the jury, and the case was submitted on the evidence offered by the State, which showed by eyewitnesses that on a night in December, 1943, at a juke joint in Newton County, Georgia, Anderson Kirkus was dancing with a girl, and Charlie Holcomb was seen to tap Kirkus on the shoulder. The next thing the witnesses saw was a fist fight between the two, Kirkus doing all the fighting with his fists. They were both required to leave the building, Kirkus going some time after Holcomb had left. Thereafter, within a period stated variously from thirty minutes to two hours, the defendants and others came to the place in Singley's car, Eddie Holcomb getting out of the car with something in his hand and inquiring where the man who hit his brother Charlie was. The defendants and others found Anderson Kirkus nearby and assaulted him, one of them striking him with a lug wrench, and others stamping him, Kirkus in the meantime begging them to quit. He finally freed himself and fled across the street pursued by the defendants, who overtook him as he was attempting to climb a bank and again stamped and beat him, some one of them saying: "Kill him." Kirkus was carried immediately to the hospital in Covington. The doctor testified that his face was bloody, his skull fractured, his nose broken — with a hole in it — his lip split, two of his ribs broken, that there was a bruised place on his side, and that he was unconscious and remained so for a number of days. His wounds improved, and he regained consciousness and left the hospital after eight days against the advice of the doctor. He immediately contracted pneumonia and died. This doctor performed an autopsy, which revealed that his liver was punctured, and his abdomen contained approximately two gallons of a bloody fluid which came from the liver puncture. His death resulted from the injury to his liver, and nothing could have been done to have saved his life had the liver injury been discovered immediately when Kirkus reached the hospital. Whether he had contracted pneumonia or not, he would have died from the injury to his liver, and his weakened condition made it easier to contract pneumonia. In the opinion of the doctor his death was the direct result of the injury to the liver caused by stamping the deceased.
The sheriff and the deputy sheriff both testified that when the defendants were arrested they both disclaimed all knowledge of the trouble at the juke joint or injury to Kirkus, one of them denying that he was even there on the occasion, and that neither has since changed his story.
1. "Where one inflicts an unlawful injury, such injury is to be accounted as the efficient, proximate cause of the death, whenever it shall be made to appear, either that (1) the injury itself constituted the sole proximate cause of the death; or that (2) the injury directly and materially contributed to the happening of a subsequent accruing immediate cause of the death; or that (3) the injury materially accelerated the death, although proximately occasioned by a pre-existing cause." Wilson v. State, 190 Ga. 824, 829 (2) ( 10 S.E.2d 861). The true rule is so clearly stated in the Wilson case, that it is thought worth while to quote it here. Tested by that rule, the general grounds of the motion for new trial in the present case are without merit. The evidence fully warranted the verdict on both (1) and (2) of the grounds stated in the rule. The physician who attended the deceased and performed the autopsy testified: "After I performed the autopsy, in my opinion this deceased could not have recovered under any conditions at all from the wound. . . This wound of the liver would have killed him regardless of what I would have done, but at the time I admit I didn't diagnose the injury. You can't always find those things. They have to gradually develop. Whether or not he died of pneumonia, the direct or proximate cause of his death was internal hemorrhage. . . Internal hemorrhage is my diagnosis of his death. He had pneumonia but if he hadn't been in a weakened condition he would not have gotten pneumonia." This evidence, together with the proof that the defendants assaulted the deceased and inflicted the wounds set out in the statement of facts, abundantly supports the verdict of guilty. The general grounds of the motion for new trial are without merit.
2. The first special ground relates to the charge on the cause of death. It sets forth a portion of the charge wherein the court said: "With reference to the cause of death where death results from an occurrence such as set out and charged in this bill of indictment, I charge you that if one should willfully, unlawfully, and with malice aforethought strike another with a weapon, thereby inflicting a wound which, though not necessarily a mortal wound, is the primary cause of a disease which brings about the death of the wounded person, then the one striking such a blow would be guilty of murder." The excerpt then applied the rule to the instant case, and charged further that one thus responsible would not be relived on account of negligence or lack of skill in the treatment of such wound — that it was for the jury to say if the wounds were inflicted upon the deceased, and, if so, if either of the defendants inflicted such wounds, and what was the effect of such wounds, and whether or not they were the primary cause or secondary cause of the death of the deceased, or whether they were related to the death. The movants concede that the charge is a correct statement of law and more than covers the State's theory, but it is insisted that "as framed and given" it excluded from the jury's consideration the theory of the defense, to wit, "from considering any other independent or natural causes which did not set in motion any other or secondary cause from which the deceased died." It is contended that the jury could have found from the evidence that death resulted from natural and independent causes unrelated to any wound or wounds, and that, in the absence of any request, the court should have submitted in its charge this theory of the defendants. In Pressley v. State, 19 Ga. 192 (3), it was said: "It is not error in the court to decline to charge that the prisoner is not liable, if the death was produced by bad surgery, if there were no evidence of bad surgery in the case." It appeared in that case that death resulted from hemorrhage some five days after the removal of the patient, and the court (page 195) said: "But even if this removal of the decedent, or any such act not plainly shown to have been unreasonable and wrong, had been the immediate cause of the death; still, would the prisoner be responsible for the act, unless, indeed, it were plainly shown that the wound was not, in its nature, mortal. And even unreasonable and injudicious treatment, which might be supposed to have been the immediate cause of the death, should not relieve the perpetrator of such an offense, unless it were clearly shown that the wound was not necessarily mortal." The only evidence of pneumonia of the deceased in the present case was that given by the attending physician, who testified without qualification that the wound in the liver was mortal, and that "this wound of the liver would have killed him regardless of what I would have done," and again: "In my opinion this deceased could not have recovered under any conditions at all from the wound." And, in reference to the pneumonia, this witness testified: "The direct or indirect cause of his death was internal hemorrhage. . . He had pneumonia, but if he hadn't been in a weakened condition he would not have gotten pneumonia." Elsewhere in the charge, the court had instructed the jury that in order to convict the defendants it would be necessary for the State to prove the crime as alleged in the indictment beyond a reasonable doubt, and that if the jury entertained any doubt of the guilt of the accused, they should acquit them. The excerpt from the charge set forth in this ground simply gave the jury a correct statement of the rule and what it would be necessary for the State to prove in order to convict. Obviously this charge is not subject to the criticism of the movants that it excluded from the consideration of the jury facts which would require an acquittal. It sought only to state those things which it would be incumbent upon the State to prove to the satisfaction of the jury in order to convict. Clearly the charge did not require the jury to disregard evidence that would disprove the facts essential to convict. The evidence did not make a case of death from natural causes independently of the wounds, and, hence, the charge contended for by the movants would not have been authorized by the evidence. Compare Clements v. State, 141 Ga. 667 ( 81 S.E. 1117); Wafford v. State, 163 Ga. 304 (3) ( 136 S.E. 49); Wilson v. State, supra; Wilensky v. State, 15 Ga. App. 360 (2) ( 83 S.E. 276); Key v. State, 21 Ga. App. 300 (2) ( 94 S.E. 283). This ground of the motion for new trial is without merit.
3. The other special ground is not approved by the trial judge. The order of the judge expressly disapproved material portions thereof. There are in this record what purport to be affidavits, one made by counsel for one of the movants, and another by seven of the trial jurors, testifying to the correctness of this ground. There is also in the record an affidavit by the solicitor-general testifying to its incorrectness. None of these, if properly authenticated, would or could be considered by this court. It is the settled rule that the Supreme Court will not pass upon a ground of a motion for new trial which is not unqualifiedly approved by the trial judge. Clifton v. State, 187 Ga. 502 (2) ( 2 S.E.2d 102). This ground can not be considered.
Judgment affirmed. All the Justices concur.