1. Where the State's evidence upon a trial for murder showed that the defendant, when asked why he killed the deceased, replied that he did not know, "people do squirrelly things sometimes," and that he went upon the hill and wondered why he did it, and thought of taking his own life, a charge to the jury on the law of confession was authorized by the evidence. The answer by the accused admits the commission of the crime charged, and does not make a case where only a minor subordinate fact is admitted which could be true whether the main fact existed or no, or a case where the defendant simply refuses to make any answer whatever.
2. A charge to the jury that the defendant is presumed to be innocent; defining a reasonable doubt; instructing the jury that they are the judges of the credibility of witnesses; enumerating the things the law authorizes the jury to consider in passing upon the credibility; and instructing them that all witnesses are presumed to be credible unless impeached or discredited, and that the law does not presume the statement of the defendant to be true or untrue, and the jury may believe the statement in preference to the sworn testimony, not capriciously and arbitrarily, but in search of the truth, is not an incorrect statement of the law as to the weight and credit to be given witnesses testifying under oath. The law presumes that witnesses who testify are credible and worthy of belief, unless impeached or otherwise discredited. Neither is the charge repugnant, as contended.
3. A remark of the judge when ruling upon an objection to evidence during the progress of the trial, even if erroneous, can not be made a ground of a motion for a new trial when no motion to declare a mistrial or other objection was made before a verdict was rendered. But, if properly excepted to, the remark here complained of was not injurious to the defendant, and would not constitute reversible error, since the defendant in his statement made substantially the same remarks to the jury. *Page 131
4. The verdict of guilty is supported by the evidence, and the general grounds of the motion for a new trial are without merit.
No. 13732. MAY 14, 1941. Charles Coates was convicted of the murder of Fred Black Jr. His motion for new trial was overruled, and he excepted. The State's evidence shows the following facts: On the night of December 20, 1940, highway patrolmen Corporal Fred Black Jr. and Trooper Farr were patrolling U.S. Highway No. 41 in Catoosa County, Georgia. They were going north, met a car driven by Charles Coates, and were crowded off the highway. The Coates car was winding from one side of the road to the other. The patrolmen turned their car around, followed the car driven by the defendant, and finally drove up and blew the siren and turned on the spotlight and stopped the defendant on the side of the road, parking the patrol car about four feet back of the defendant's car. The car driven by the defendant was a Plymouth coupe with an Oklahoma license tag. The patrolmen got out of their car, and Corporal Black walked to the left side of defendant's car and asked defendant why he was driving that way. He told defendant that he would have to write him a warning ticket, and to do this he would have to have defendant's driver's license. The defendant said, "All right," and got out of his car; but just as he got out he turned and with a pistol in his hand said: "Here is my driver's license. Stick them up, God damn you." He then turned to Trooper Farr and said, "You, too, damn you." Corporal Black had his flashlight under one arm, his ticket book in one hand, and a pencil in the other. He made an effort to grab the pistol, and the defendant immediately shot him. After a short tussle defendant shot him again and he fell to the ground. After exchanging some shots with Trooper Farr the defendant crossed a ditch and left the highway. Corporal Black was shot once in the thigh and once in the chin and chest. The doctor testified that the shot in the thigh severed a blood-vessel, and that this caused the death. The defendant fled, and was trailed by officers with bloodhounds, his trail being evidenced at many points by drops of blood and tracks. After five days he was apprehended and arrested in Tennessee. At the time of his arrest a pistol was taken from his person, *Page 132 and the two bullets with which Corporal Black was shot were identified, and were shown by an expert from the office of the Federal Bureau of Investigation to have been shot by the pistol taken from defendant. The bullets and pistol were introduced in evidence. In the car operated by the defendant at the time of the killing was found a quantity of narcotics estimated to be worth a thousand dollars; and in the car with the defendant was a woman identified by him as his wife. No other person was in the car. In bringing the defendant from the place where he was captured to the Fulton County jail, Major Lon Sullivan, in the presence of O. W. Whiteside, asked the defendant why he shot Corporal Black, and the defendant said he didn't know why he did, but people did "squirrelly things sometimes." He said he laid up there on top of the hill, and wondered about why he did it, and thought he would shoot himself. He told Major Sullivan that he had a prison record and had escaped from prison, and that he was under a life sentence. As he fled from the scene of the crime he crawled through a barbed-wire fence. A green thread was found on the fence, which witnesses testified had come from a two-tone jacket which the defendant was wearing when arrested. There was an abrasion on his head and a sore on his left hand. At various places where his tracks were visible as he was fleeing, they indicated that he was running; and there was testimony that he could not have been carrying another person when these tracks were made.
The defendant made a statement to the jury, in substance as follows: He did not say he was absolutely innocent, but he did say that he was not guilty "as the State has proved me to be." In Memphis on December 18 he met a friend on the street, and this friend at his request witnessed his marriage. In the meantime he told this friend that he had about a thousand dollars worth of narcotics, and the friend told him that he had connections in Atlanta where he could sell the narcotics for $500 or more. He told the friend, Charlie Butler, that he would give him a percentage if he would sell the narcotics. So they started from Memphis, the three of them, the defendant, his wife and Charlie Butler. Charlie Butler was from Missouri, and was known as Harry Hobart. He was wanted in Missouri, and that was the reason defendant had not told the officers. On the night of the 20th they came down to *Page 133 Chattanooga, and after getting something to eat they came on into Georgia with Charlie Butler driving. The officers drove up behind them and blew the siren, and Butler pulled to the side of the road and parked. The officers parked their car about ten feet behind the defendant's car. Officer Black came to the side of their car and asked what was wrong, and Butler replied that the road was bumpy. Officer Black asked to see Butler's driving license, and Butler stepped out of the car, whipped his gun from his jacket, and said something to the officer. Then the officer grabbed him, and Charlie shot three times at the officer, who fell in front of the car. The defendant got scared, and when officer Farr came to the front of his car and started shooting at Charlie and Charlie ran across the road, the defendant jumped out of the car and ran down the road about eighty-five yards. He stopped, thinking about leaving his wife in trouble, and started to go back, but thought of the fact that he was an escaped lifer out of Missouri, and if he went back he would have life to do. He heard Charlie crashing through the woods and saying that he was shot. He found that Charlie was shot in the armpit and bleeding violently. He tried to get a tourniquet around his arm to stop the flow of blood, but couldn't get it tight enough. He helped and carried Charlie over the route to Chattanooga, and there Charlie gave defendant his gun, the one with which he shot officer Black and which was taken from him when he was arrested; and they separated. On the night of his arrest he stole an automobile, drove it down the road about three miles, saw some officers and jumped out of the car; and the officers followed him. He could have killed one of the officers who had a miner's cap on, if he had wanted to. In a supplemental statement he explained the sore on his hand, saying that it was caused by a number six shot which went through his hand, and said he got hit when fleeing from officers at Decatur, Tennessee. He also said that a number eight shot hit him in the leg. He denied that he was shot on the night of the killing, and concluded by saying: "I don't say I am innocent. I don't deny the gun was caught on me. I don't deny that that was the gun that killed the officer. I don't deny the bullets were taken from the officer. All I deny is that I was the one that fired the gun and killed the officer. . . I admit I was there. I admit I was with the man that killed the officer, but I say I am innocent of killing the man. I guess that is all, gentlemen." *Page 134 1. The first special ground of the motion for new trial assigns error on the instruction to the jury on the law relating to a confession as evidence. It is contended that the charge was not authorized by the evidence, was not adjusted to the issues in the case, and caused the jury to believe that the judge thought there was evidence of a confession. The evidence shows that upon being asked why he killed the deceased the defendant answered that he did not know, that people acted "squirrelly" sometimes, and that he laid upon top of the hill and wondered why he did it and thought of killing himself. When the question is made a part of the answer, as it must be to make it intelligible, it amounts to an assertion by the defendant that he killed the deceased, followed by the explanation as to why as set forth in his answer. It therefore shows a confession of the crime as charged in the indictment. In Bowden v. State, 151 Ga. 336 (106 S.E. 575), the evidence showed that upon being asked why he killed the deceased the defendant replied by stating reasons; and this court held: "With this evidence in, the court was authorized to charge upon the subject of confession. When the witness asked the defendant why he killed the woman, and he answered that he did it for certain reasons, stating them, this amounted to a confession." In Webb v. State, 140 Ga. 779 (2) (79 S.E. 1126), the deceased was shot just outside the house, and just after the shooting the accused had a pistol in his hand, and as his wife and others were going out of the house the accused told them to go back, as they were liable to get shot, and that he had one man "falling on his knees now." This court held that the evidence amounted to a confession by the accused that he shot the decedent, with no exculpatory explanation, and authorized the charge on confession. In Nail v. State, 142 Ga. 595 (3) (83 S.E. 226), this court said: "Evidence having been introduced upon the trial tending to show that the defendant admitted the killing, and no circumstances of justification or alleviation appearing in connection with this admission, the court did not err in charging upon the subject of confession. This is true although *Page 135 the defendant, when referring upon other occasions to the killing, did state circumstances of justification or mitigation." In Edwards v. State, 159 Ga. 419 (126 S.E. 16), the evidence relied on as proof of a confession was the testimony of a witness that "He didn't tell me anything except that he done the killing; he didn't say why, and I didn't ask him." This court held that the evidence authorized the charge on confession. To the same effect see Jones v. State, 130 Ga. 274 (60 S.E. 740); Lucas v. State, 146 Ga. 315 (9) (91 S.E. 72);Thompson v. State, 147 Ga. 745 (2) (95 S.E. 292);McCloud v. State, 166 Ga. 436 (2) (143 S.E. 558).
The main case relied upon in support of this complaint isAllen v. State, 187 Ga. 178 (3) (200 S.E. 109). It was there held that the statement of the defendant, in reply to a question as to why he struck his mother, the deceased, that she refused to cook for him, did not constitute a confession, and hence did not require a charge on that subject. The record in that case discloses that the defendant was charged with the murder of his mother; that she had been whipped, beaten, choked, and wounded about the head and face with a blunt instrument; that there was a hole in her head made with an instrument such as a guard on a mowing-machine or a screwdriver; and there was a laceration on the side of her face about an inch and a half deep and two or three inches long. The defendant admitted that he slapped her and left her on the floor of the kitchen. Thus it clearly appears that the admission of the defendant did not necessarily embrace the crime charged in the indictment. It might have been one of a series of attacks, but certainly was not an admission of the completed crime charged. In Fletcher v.State, 90 Ga. 468 (17 S.E. 100), in ruling on similar evidence this court said: "There is a very wide distinction between admitting the main fact and admitting some minor or subordinate fact or series of facts which could be true whether the main fact existed or not. This distinction has been pointed out at least twice by this court, and frequently by other courts." Thus it is seen that the ruling made in Allen v.State, supra, has no application to the facts in the present case. The plaintiff in error insists that the answer by the defendant to the question of why he killed the deceased amounts to no more than a refusal to answer, and that if any rule of law is applicable it is that of implied admission, under the Code, § 38-409; but it *Page 136 is further argued that the refusal to answer here, under the circumstances at the time, did not have the effect of impliedly admitting his guilt. It is argued that the defendant was not required to give evidence against himself, and was authorized to refuse to answer questions touching the crime; and to support this argument the case of Johnson v. State, 151 Ga. 21 (105 S.E. 603), is cited and relied on. This contention is completely answered by the simple fact that the defendant, instead of refusing to answer, did in fact answer the question by admitting that he committed the crime charged in the indictment. This ground is without merit.
2. Special ground 2 complains of an excerpt from the charge which states that the defendant enters upon the trial with the presumption of innocence in his favor, which presumption remains with him unless overcome by evidence sufficient to convince the minds of the jurors of his guilt beyond a reasonable doubt; then defines a reasonable doubt and explains how it may arise; then instructs the jury that they are the exclusive judges of the credibility of witnesses, and what they are authorized to consider in passing upon this credibility; explains that the defendant has a right to make such statement as he deems proper, and that the jury may give it such credit as they think it entitled to, and may believe it in preference to the sworn testimony; then instructs them that the law presumes all witnesses credible and worthy of belief, and that they will not wilfully swear falsely, but further states that the presumption of law that witnesses will not testify falsely is only a prima facie presumption and is not conclusive, and that unless impeached in some manner provided by law, or otherwise discredited in the judgment of the jury, they are presumed to speak the truth. The judge further instructs the jury that it is their right and duty to consider the statement of the defendant, and that they may believe it in preference to the sworn evidence, not capriciously and arbitrarily but in search of the truth; and that there is no presumption touching the defendant's statement, no presumption that it is true and no presumption that it is untrue. The complaint is that the charge is argumentative, prejudicial, and is an incorrect statement of the principle of law as to the weight and credit to be given witnesses testifying under oath, and that there is no presumption of law that witnesses who testify *Page 137 are credible and worthy of belief, and that the charge is confusing and repugnant. It is the function of the jury, under proper instructions from the court, to determine the credibility of witnesses. Code, § 38-1805. The charge under attack fully instructed the jury to this effect, and as to the matters they were authorized to consider in determining the credibility. Every attack made upon the charge here complained of is answered adversely to the movant by the decision of this court inCornwall v. State, 91 Ga. 277 (18 S.E. 154), where a charge in substantially the same language was approved. Also, inGeorgia Talc Co. v. Cohutta Talc Co., 140 Ga. 245 (5) (78 S.E. 905), it was said: "There was no attempt to impeach any witness by evidence introduced for that purpose. The court charged that `the law presumes all witnesses are honest and tell the truth, until the contrary appears by proof.' This charge was not erroneous," citing Cornwall v. State, supra; 40 Cyc. 2555. There was no attempt in the present case to impeach any of the witnesses by evidence produced for that purpose. That part of the charge instructing the jury that they may believe the statement of the defendant in preference to the sworn testimony, but adding that they may not do so capriciously and arbitrarily, was not erroneous. In Keller v. State, 102 Ga. 506 (9) (31 S.E. 92), the instruction complained of was: "If you find the statement consistent and true, you have the right to believe it in preference to the sworn testimony in the case. You should not do so carelessly and capriciously, but under your oaths as jurors, considering the statement in connection with the sworn testimony in the case, and, testing it in the light of that testimony, give it such weight as you think proper." This court said: "All of us, except Mr. Justice Little, are of the opinion that there was no error in this charge. The statute provides that `the jury may believe such statement in preference to the sworn testimony in the case.' The jury can do nothing carelessly, capriciously, or arbitrarily; the statute, interpreted according to the meaning of the words used, is the measure of their power. . . Surely the statute never intended to authorize the jury toaccept the prisoner's statement without consideration of its own truth and without regard to the existence of the sworn testimony." To the same effect, see Smalls v. State,105 Ga. 669 (5) (31 S.E. 571); Barnes v. State, 113 Ga. 716 (39 S.E. 488); Harris v. *Page 138 State, 136 Ga. 107 (4) (70 S.E. 952). The excerpt of the charge is not subject to any of the criticisms made.
3. Special ground 3 complains of a statement made by the court in response to an objection by the defendant's counsel to the testimony of State's witness Bawman that he had seen the pistol in the case, the statement objected to being: "I will overrule the objection. So far as the record is concerned, it appears in the record without dispute that this is the gun which caused the death of Corporal Black. The defendant in his own statement says that that is the gun; he just denied that he is the man that had the gun; he just contends that he got the gun from Butler after the killing." The criticism of this statement is that it was an expression of an opinion of what had been proved, and of what the defendant said in his statement, and was not authorized by either the evidence or the law, and invaded the province of the jury. Then follows what movant contends is a copy of all of the evidence, including the defendant's statement, relating to the gun. Whether or not the criticism of the judge's statement is well founded, a review can not be had on the question, since the objection was raised for the first time in the motion for new trial. The rule on this question has been announced repeatedly by this court. In Perdue v. State, 135 Ga. 277 (69 S.E. 184), complaint was made in the motion for a new trial because of alleged prejudicial remarks made by the court in the presence of the jurors; and it was held that the question was not properly raised. The court said: "But we do not think that, after knowing the remarks had been heard by the jurors present, counsel could proceed with the trial without objection, and, after a verdict of guilty, raise the question which they here seek to have adjudicated in their favor, with the result of setting aside the verdict of the jury and giving the defendant another trial in the court below." Rulings to the same effect were made in Barnett v. Strain, 154 Ga. 553 (5) (107 S.E. 530), and Herndon v.State, 178 Ga. 832 (174 S.E. 597). For the reasons stated, this ground of the motion will not be considered; but it may be observed that according to the defendant's statement before the jury there was no issue as to the identity of the gun, the defendant saying, "I don't deny the gun was caught on me. I don't deny that that was the gun that killed the officer. All I deny is that I was the one that fired the gun that *Page 139 killed the officer." Therefore, if properly excepted to, the remarks of the court would not constitute reversible error, because the defendant was not injured thereby.
4. The verdict of guilty is supported by the evidence, and the general grounds of the motion for a new trial are without merit.
Judgment affirmed. All the Justices concur.