Opinion
14839.
MAY 4, 1944.
Murder. Before Judge Worrill. Clay superior court. February 5, 1944.
Zach Arnold, for plaintiff in error.
T. Grady Head, attorney-general, R. A. Patterson, solicitor-general, Hooper Miller, and Victor Davidson, assistant attorney-general, contra.
1. The sentence in the statement of the accused, on trial for murder, in which he admitted the killing, that "I lost control of my head," did not constitute a defense of temporary insanity. But had such a defense been made in the unsworn statement of the defendant alone, it would not have required a charge on that defense in the absence of a timely request.
2. There being no testimony showing temporary insanity of the accused the court did not err in failing to charge the jury on the law of temporary insanity, as contended in special ground 2 of the motion for new trial.
3. Where the court charged, "It does not mean a doubt arbitrarily created in the mind of a juror for the purpose of finding an excuse to acquit, this excerpt is not subject to the attack that it tended to make the jury believe that the court would look upon a verdict of acquittal as unjustified, when the excerpt contains less than half a sentence, the remainder of which fairly explains what the excerpt means, and was preceded immediately with an instruction to acquit the accused unless the State had established by proof his guilt beyond a reasonable doubt.
4. The evidence would not have authorized a verdict of justifiable homicide. But cross-examination of the State's witnesses unsuccessfully attempted to show that the deceased had a weapon. The charge on justifiable homicide gave the defendant the benefit of a defense to which he was not entitled, and did not tend to destroy other defenses. The court did not err in so charging.
5. An admittedly correct charge, to the effect that the jurors are the exclusive judges of the credibility of witnesses, is not erroneous because it fails to charge also that they are likewise the judges of the defendant's statement. Elsewhere in the charge the court instructed the jury that they could give the defendant's statement such credit as they thought it entitled to, and could believe it in preference to the sworn testimony.
6. Where both the uncontradicted evidence and the defendant's statement showed that the accused did the killing as alleged in the indictment, and neither showed circumstances of justification or mitigation; and where it also appeared without dispute that the killing was at the home of the deceased who lived on a named person's place in Clay County, and the trial was sub Clay County, the verdict of guilty of guilty of murder without recommendation is supported by the evidence, and the venue was shown to be in Clay County, the place of trial.
No. 14839. MAY 4, 1944.
John Jones was convicted of the murder of Cora Carter. The State's witness, Lorena Jones, testified that she was the daughter of Cora Carter, and that on October 3, 1943, she, her baby, and her mother were sitting on the porch when the defendant came there with Gay Feaster. Feaster was driving a car. The defendant and Judge Guilford and Head McBride were riding in Feaster's car. John Henry Carter, brother of the witness and son of the deceased, was standing on the side of the car as it drove up. When the car stopped, John Henry Carter got off and was standing on the ground talking to the men in the car. The defendant was sitting in the back seat and asked the driver to let him get out. The driver stopped, the defendant got out, walked to about the end of the porch, and said "God damn" something. She did not know what he said. She saw him pull out a pistol, and she jumped up with the baby and moved to one side. He shot one time and hit her mother. Her brother, John Henry, jumped up on the porch, put his arms around his mother, and the defendant shot him. The deceased did not fall or stay in the chair after she was shot. She jumped up and went to the end of the porch, jumped off the porch went around the house, and came back as far as the porch and fell. Guilford met her and said something about getting her to a doctor; but she fell right there at the porch. She lived a few minutes after she was shot. She never said a word. She was not trying to hurt the defendant when he shot. She had no weapon, knife, or pistol, or anything. She was not trying to hurt or bother the defendant. They carried John Henry Carter to the hospital where he stayed only the next week. After the defendant had done the shooting, he ran straight across the field in front of the house. He did not shoot but twice then; but he had been to the house about 9 or 10 o'clock that morning, and shot straight up two times. The first time he came to the house, the deceased was there, sitting in her room, and the defendant came to the door, cursed, and pulled out his pistol, and told the deceased that if she breathed loud he would kill her. The witness's sister told the defendant to go home; that he was drunk. He left and went down to another house and shot two times down there. When he came back, he came in the car. All this happened in Clay County in October. 1943. On cross-examination, she testified that her mother lived on Will McKemie's place. The shooting took place on Will McKemie's place. She had known the defendant ten or fifteen years. He had been at the same place during that time, working with Will McKemie. He moved off once but came back. She could not say exactly how far the defendant lived from her mother. It was down the road and could be a mile, but might not be that far. She did not know how long her mother had been going with the defendant. He had been there before when the witness was visiting. The witness had been at her mother's lots of times when the defendant was there also. Her father is dead. The defendant is a married man, and was living with his wife at the time he killed the witness's mother. He had about six or seven children. His wife had been in a hospital about two years before the shooting but she was out of the hospital at that time. Judge Guilford, Gay Feaster, and John Henry Carter, testifying for the State, corroborated the testimony of Lorena Jones as to the killing. The defendant made the following statement: "I done it. I am sorry I done it but I lost control of my head. I have been going with this lady for eight months, ever since her husband died. I don't know anything about the law or my A, B, C's. Nobody ever told me anything about no law. I have been with Mr. McKemie for a long time, and have never done nothing but work."
The defendant excepts to the judgment overruling his motion for new trial.
1. Special ground 1 of the motion for new trial excepts to the court's failure to charge on the law of "temporary insanity." It is insisted in this ground that the issue of temporary insanity was made by a sentence in the defendant's statement, to wit, "I lost control of my head." In the first place. this statement does not show any element of temporary insanity. As ordinarily used, this expression would imply that the defendant, because of anger or excitement, lost control of himself. It in no wise indicates an unsound mind, and, hence, does not raise an issue of temporary insanity. However, if by any interpretation it could be construed as having made such an issue, that issue having been made by the defendant's statement alone would not require a charge thereon in the absence of a timely request. Counsel for the movant recognizes this well-established rule, but assails the soundness of the rule and specifically requests us to review decisions by this court sustaining and applying the rule, aggregating about seventy-five in number, beginning with Downing v. State, 66 Ga. 110, and ending with Jester v. State, 193 Ga. 202 ( 17 S.E.2d 736), together with any other decision which sustains the rule. In support of this request, it is urged that no solid basis or justification for such a rule can be found and that it deprives the defendant of the benefit of a defense which he is able to make by his unsupported statement only. The long array of decisions which it is sought to have overruled constitute sufficient argument for sustaining the rule. It is a mere rule of practice or procedure which requires the defendant to do something, and in nowise deprives him of the benefit of any defense found in his statement alone, provided only that he complies with the rule. Under the principles of evidence, prejudicial and irrelevant testimony may be excluded, provided the rule requiring objections thereto be complied with, but in the absence of compliance, a new trial will not be granted despite the fact that inadmissible evidence has been introduced. So here, where, as shown by numerous decisions, the rule requiring a timely request to charge on a defense made by the defendant's statement only is well established, and where as here counsel for the accused elects to refuse to comply with the rule, the responsibility for the failure to have the complaint reviewed by this court falls, not upon the rule, but upon the movant who fails to observe it.
2. Special ground 2 excepts to the failure to charge on temporary insanity, and asserts the contention of the movant that the entire evidence in the case shows this defense, and that the evidence as a whole shows conclusively that the killing was the act of a crazy maniac, and therefore, that it was the duty of the judge to charge on the subject without request. There is no testimony in this record making the defense of temporary insanity, and hence this ground, complaining because the court failed to charge on temporary insanity, is without merit, irrespective of whether or not the ground of exception is sufficient in law; there being no evidence incorporated in or attached to this ground of the motion for new trial. Bennett v. Brown, 164 Ga. 51 ( 153 S.E. 756); Bryant v. State, 180 Ga. 238 ( 178 S.E. 651); Horton v. Johnson, 192 Ga. 338 (4) ( 15 S.E.2d 605); Hicks v. Cherry 193 Ga. 4 (3) ( 17 S.E.2d 60); Jones v. Jones, 196 Ga. 492, 496 (2) ( 26 S.E.2d 602); Davis v. Guffey, 196 Ga. 816 (2) ( 27 S.E.2d 689).
3. Special ground 3 excepts to the following excerpt from the charge: "The reasonable doubt of the law does not mean a fanciful or capricious doubt. It does not mean a doubt arbitrarily created in the mind of a juror for the purpose of finding an excuse to acquit." The portion of the charge complained of is, "It does not mean a doubt arbitrarily created in the mind of a juror for the purpose of finding an excuse to acquit;" the attack being that it tended to unduly influence and intimidate the jury, and to cause them to believe that the court was of the opinion that the only doubt that the jury could find in the case would be a doubt arbitrarily created in the minds of the jury for the purpose of finding an excuse to acquit; and that the charge tended to make the jury believe that if they returned a verdict of acquittal, the court would think that they had arbitrarily made up an excuse to acquit. One trouble with this ground is that it mutilates the charge on the subject, and repeats only a part of the sentence in the charge as given. The portion complained of stops in the middle of the sentence with the word "acquit," the remainder of the sentence being, "but it means a doubt that has some reasonable foundation upon which to rest, a doubt of a reasonable, fair-minded, impartial man and juror who is honestly in search after the truth, and which doubt flows out of the evidence, the want of evidence, or proven circumstances in the case, or the statement of the defendant." The charge complained of is immediately preceded by the instruction that, "The burden of proof rests upon the State, and before the jury would be warranted in convicting the defendant of the charge alleged against him in said bill of indictment, the evidence must be of such convincing strength as to satisfy the jury of the defendant's guilt beyond all reasonable doubt." The movant makes no contention that the language complained of is an incorrect statement of the law, but complains only of what the movant contends was the effect upon the jury. If it was a correct statement of the law its effect upon the jury would make no difference, but it does not appear that the charge prejudiced the jury against the accused, and it is not subject to the criticism made.
4. Special ground 4 excepts to the charge on justifiable homicide. It is contended in this ground that there was no evidence to authorize the charge, and that by charging the jury on a defense which the defendant made no attempt to sustain by proof, this charge prejudiced the jury against the defendant in that it made it appear that he was claiming a defense without offering any evidence to sustain the same, and that it diverted the minds of the jury from the only defense which the defendant had made, to wit, temporary insanity. Though the evidence made no case of justifiable homicide, the State's witnesses were repeatedly asked if the deceased had a weapon, to which negative answers were made, and by this charge the court gave the accused the benefit of a defense to which he was not entitled. There is nothing in the charge to indicate that the defendant had no other defense, and it was not calculated to injure the accused. Hodges v. State, 95 Ga. 497 ( 20 S.E. 272); Westbrook v. State, 97 Ga. 189 (3) ( 22 S.E. 398); Green v. State, 153 Ga. 215 (4) ( 111 S.E. 916).
5. Special ground 5 complains of an excerpt of the charge as follows: "The jury are the exclusive judges of the testimony and the credibility of the witnesses." The grounds of complaint here are that these words tended to stress the fact that the jury were the exclusive judges of the testimony, and did not mention the fact that they were also the exclusive judges of the defendant's statement, and that such words tended to create an arbitrary distinction between the effect of the defendant's statement and the testimony and to minimize the effect of the defendant's statement. Here, the movant makes no criticism of the court's language upon the ground that it is an incorrect statement of the law, or that it was inapplicable and should not have been given; but the complaint is that other law instructing the jury as to the weight and credit to be given the defendant's statement is not contained in this portion of the charge. It is not a valid attack upon an instruction, which within itself is appropriate and a sound rule of law, that the court did not also charge another appropriate and sound principle of law. Lively v. Inman, 135 Ga. 10 (4) ( 68 S.E. 703); Peeples v. Rudulph, 153 Ga. 17 (2) ( 111 S.E. 548). For this reason, ground 5 is without merit. However, it might be well to state that, immediately preceding the sentence complained of and in the same paragraph, the court instructed the jury that the defendant had the right to make such statement to the court and jury in his defense as he might consider proper, that his statement was not under oath but should have such force as the jury might think right to give it, and that they could believe it in preference to the sworn testimony.
6. Special ground 6 alleges that the venue was not proved, and that there was no evidence to show jurisdiction of the trial court. The general grounds assail the evidence as a whole as not being sufficient to sustain the verdict. The evidence shows that the crime occurred at the home of the deceased on the Will McKemie place in Clay County. This was sufficient to show that the offense was committed in Clay County, Georgia; and Clay County was the county in which the case was tried. Knox v. State, 114 Ga. 272 ( 40 S.E. 233). The verdict is supported by the evidence, and the general grounds are without merit.
Judgment affirmed. All the Justices concur.