Opinion
13818.
JULY 9, 1941. REHEARING DENIED JULY 19, 1941.
Murder. Before Judge Mitchell. Whitfield superior court. April 9, 1941.
Paul H. Field, for plaintiff in error.
Ellis G. Arnall, attorney-general, J. H. Paschall, solicitor-general, E. J. Clower and C. E. Gregory Jr., assistant attorneys-general, contra.
1. The verdict that the defendant was guilty of the offense of murder was authorized by the evidence.
2. On the trial of one charged with murder by cutting another, testimony of eye-witnesses that the deceased said, "Why did you cut me?" and then walked a few steps and came back and said, "Why did he cut me?" is admissible as a part of the res gestae.
3. An exception that the court failed to charge to the jury the law of Georgia on manslaughter and that under the evidence a charge of manslaughter was demanded, and that the court erred in failure to charge the statute of the State of Georgia covering manslaughter, is not a sufficient assignment of error, because it fails to indicate whether it is contended that the charge should have been upon the subject of voluntary or involuntary manslaughter, and, if the latter, what branch of involuntary manslaughter. But if the assignment were sufficient, where there is no evidence authorizing a charge on any branch of manslaughter, and if such charge is authorized at all it is on the statement of the defendant, in the absence of a timely request it is not error for the court to fail to charge on that subject.
No. 13818. JULY 9, 1941. REHEARING DENIED JULY 19, 1941.
Robert Worthy was convicted of murder. He excepted to the overruling of his motion for new trial.
The State introduced several witnesses whose testimony shows the following facts: The defendant, Hardiman, and a number of other negroes engaged in a game of dice, during which or immediately thereafter the defendant borrowed fifty cents from Hardiman, pawning his sweater therefor. Shortly thereafter some of them assembled on a street in the City of Dalton, where Hardiman proposed to the defendant that they roll the dice to determine whether the defendant owed him $1.50 or nothing. This proposal was rejected by the defendant. Hardiman told the defendant that he was leaving town soon, and intended to carry the sweater with him unless it was redeemed in the meantime. Hardiman laughed during the conversation. The sweater was hanging on his arm; his hand was swollen and was not in his pocket. The defendant said that he was going to kill a negro and get his sweater. Thereupon, reaching over the shoulder of Hardiman, he struck Hardiman in the neck with a knife, severing his jugular vein, which caused profused bleeding immediately and resulted in Hardiman's death in a few minutes. A witness testified that when Hardiman was cut he said, "What did you cut me for?" Another testified that when Hardiman was cut he walked about the distance from the witness's chair to the window of the court-room, turned and came back, and said, "What did he cut me for?" The defendant ran from the place of the cutting, and was later arrested. A knife was identified by an officer as the defendant's knife, and a witness testified that defendant had told him that the knife belonged to defendant.
The defendant offered no witnesses, but made the following statement to the jury: "Judge, your honor and gentlemen: We was having a crap game down at a fellow's named Willie McKinn. I had about thirty cents and shot that, and I says, `Somebody loan me fifty cents on this jacket,' and William says, `I will,' and then he let me have [it], and I says, `I will give it back to you Friday.' I was working for Mr. Westcott. This boy McKinn come out, and Joe Cobb and four or five walked up there, and McKinn says `Somebody has got my dice,' and somebody says `They have them,' and we started walking off up the street, and William says, `I will shoot dice with you for the jacket.' He says, `If you make a seven or catch a point and make it, the jacket is yours; and if you don't, you owe me a dollar and a half;' and I says, `William, I haven't worn the jacket but two or three times,' and he says, `I am going to leave town.' And so Joe and some other fellows was there, and I says, `Joe, have you got a dollar?' and he says `No;' and I asked Joe Miller if he had a dollar, and Joe said he didn't. And he [Hardiman] said, `You are going to shoot the dollar and a half,' and he had the coat up on his arm, and his hand in his pocket, and when he did I just struck him with the knife and then run. I didn't intend to kill him; he had done beat up several down there. He said he wanted me to shoot a whole dollar and a half on the jacket, and I told him I hadn't worn the jacket but once or twice. I was afraid of him. I just hit him with the knife and run. I wasn't aiming to kill him." Supplemental statement. "Well, Judge and gentlemen, Mr. Vining asked me going out to the camp, and he says, `Robert, did you go to kill him?' and I says, `No, I didn't go to kill him.'"
1. The State's evidence proved every element of the crime charged in the indictment. The defendant offered no witnesses, and relied on his own statement, in which he admitted the killing and claimed justification because he feared the deceased, and did not intend to kill him. The verdict of guilty is supported by the evidence, and the general grounds of the motion for new trial are without merit.
2. Special grounds 1 and 2 complain of the court's overruling motions by defendant's counsel to exclude testimony of State's witnesses, who were present at the place of the crime, that the deceased said, "What did you cut me for?" and that, after walking a distance of from the witness-stand to the court-room window, the deceased turned and walked back and said, "What did he cut me for?" The ground of objection to this testimony was that the statements of the deceased were neither dying declarations nor a part of the res gestae, and were prejudicial to the defendant. It is declared in the Code, § 38-305, that "Declarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought, shall be admissible in evidence as part of res gestae." Under this rule the nearness of a declaration to the act in point of time is limited to the extent only that it must be "free from all suspicion of device or afterthought." The first statement complained of was evidently made instantly after the act, and was addressed to the defendant. The last statement must have been made within about a minute after the act. In neither case is there ground for suspicion of device or afterthought. Tested by a long chain of decisions of this court, both statements were parts of the res gestae and constituted legal evidence. Mitchum v. State, 11 Ga. 615 (4, 5); Dumas v. State, 65 Ga. 471 (2); Stevenson v. State, 69 Ga. 68 (2); Thornton v. State, 107 Ga. 683 ( 33 S.E. 673); Cason v. State, 134 Ga. 786 (5) ( 68 S.E. 554); Mack v. State, 164 Ga. 250 ( 138 S.E. 153); O'Neal v. State, 172 Ga. 526 ( 158 S.E. 51); Luke v. State, 184 Ga. 551 (2) ( 192 S.E. 37). These grounds are without merit.
3. The remaining ground complains because "the court failed to charge the law of Georgia on manslaughter, and under the evidence in the case a charge of manslaughter was demanded, and the court erred in failure to charge the statute of the State of Georgia covering manslaughter." In Troup v. State, 150 Ga. 633 ( 104 S.E. 421), it was said: "An exception to the charge of the court, on the ground that the presiding judge `should have charged the jury the full law in reference to the different grades of manslaughter' (the defendant contending that the law of manslaughter was involved), is not a sufficient assignment of error, because of the failure to indicate whether it is contended that the charge should have been upon the subject of voluntary manslaughter or involuntary manslaughter; and if the latter, what branch of involuntary manslaughter. Knight v. State, 148 Ga. 41 ( 95 S.E. 679)." To the same effect see Johnson v. State, 146 Ga. 190 (5) ( 91 S.E. 42); Armstrong v. State, 181 Ga. 538 (3) ( 183 S.E. 67); Miles v. State, 182 Ga. 75 (4) ( 185 S.E. 286); Harris v. State, 183 Ga. 574 (2) ( 188 S.E. 883). Under the cases cited this ground is insufficient and presents no question for decision. But if the assignment be sufficient to present a question for decision, the complaint is without merit, for the reason that no evidence authorized or required a charge on any branch of manslaughter. If such a charge was authorized at all, it was by virtue of the defendant's statement; and in such a case the court is required to give such charge only when properly requested by the defendant. Felder v. State, 149 Ga. 538 ( 101 S.E. 179); Jenkins v. State, 153 Ga. 305 ( 111 S.E. 915); Carter v. State, 171 Ga. 406 ( 155 S.E. 670); Davis v. State, 178 Ga. 203 ( 172 S.E. 559); Turner v. State, 190 Ga. 316 ( 9 S.E.2d 270); Massey v. State, 191 Ga. 44 ( 11 S.E.2d 186). This ground is without merit.
Judgment affirmed. All the Justices concur.