Rulings on exceptions to admission and exclusion of testimony and to instructions to the jury on trial for murder by striking a woman on her head with a hatchet, resulting in affirmance of refusal of new trial.
No. 13406. SEPTEMBER 26, 1940. Robert Wilson was found guilty, with a recommendation, of the murder of Eva Josey. The indictment charged that on January 31, 1937, he did "unlawfully and with force and arms, feloniously, and with malice aforethought, with an axe, hatchet, wooden bludgeon, piece of iron, piece of steel, and other blunt and sharp instruments, which he had and held, the same being a weapon likely to produce death, make an assault" upon her, and "strike, beat, cut, and wound [her], thereby giving [her] a mortal wound, of which wound [she] then and there died." The evidence showed that the wounds of the head, which the State contended caused death, were inflicted on January 31, and that the deceased died on October 4, 1937. A deputy sheriff testified that he found the deceased about ten o'clock at night in a house where, according to other testimony, she had been living with the defendant, in a desperately wounded *Page 825 condition, lying on her face with feet tied together by a large cord; that a trial of blood looked like she had been dragged from the next room; and that he could find no weapon. The brother of the deceased testified to the same effect; that he had seen the defendant and the deceased together in the house at about seven o'clock that night; that he had lent his hatchet to the defendant, and it had not been returned; that he had a conversation with the defendant, after an arrest three years later, in which the defendant said he had gone to Florida, "was scared and run off," and told the witness "he done it with the hatchet," but would not tell him "what he did with the hatchet." While the mother of the defendant testified that she had seen the deceased walking on the street after being confined in a hospital for several months, the other testimony showed the desperate nature of ten or more hatchet wounds on the head, a fracture of the skull, which "caused the brain to be exposed to infection," continual loss of blood, and helplessness both at the hospital and at her home. One of the attending physicians testified that her case "was hopeless from the time I saw her." While the testimony showed that the immediate cause of death was an infected lung or a gangrenous abscess of the lung, three physicians testified for the State as shown in the opinion, infra. Dr. J. C. Anderson, after testifying as to facts, stated: "I would say that this infection was secondary to the infected wounds that she had at the beginning. The primary cause of her trouble would be the wounds on the head . . in my opinion in this case . . the abscess was not the primary cause of death." Dr. J. L. Gallimore, describing her condition, said: "I think her final condition was secondary to the wounds she received. I think her final demise [came] up probably to that." Dr. J. B. Holmes, who attended her after she was readmitted to the hospital a few weeks before her death, testified that "the hatchet wounds on her head caused the brain to be exposed to infection," that her "low resistance was caused from the injuries she had received, the injuries causing a shock," and that "the infection is secondary to that, and the gangrenous condition was secondary to that." There was additional expert testimony as to the condition of the deceased and the nature of a gangrenous abscess of the lung.
The defendant stated to the jury that after the deceased had accused him of moving her money, she said, "I don't want to start *Page 826 any cemetery of my own," threw a hatchet at him, which he caught on his arm, and "started on [him] with an ice-pick;" that he told her, "Don't come on me," and "I could not dodge and I could not get out, and that is the reason I hit her." He denied tying her feet; denied saying anything to the brother of the deceased, except that he had been to Florida; and said that the only statement he had made about his trouble with the deceased was to the arresting police officer, and that he told this officer that he hit the deceased because "she was after me with an ice-pick and I had to defend myself," and had gone away because of his fear of the two brothers of the deceased.
As to the relation between the wounds and death, the court instructed the jury: "I charge you, however, that if you do believe beyond a reasonable doubt that the defendant inflicted a grievous wound or wounds upon the deceased, as alleged in the indictment, in order for you to attribute the death of the deceased to the defendant it is not necessary that said wound or wounds be in themselves mortal, but it is sufficient if it or they were the primary cause which produced other and secondary causes from which the death of . . the person named in the indictment resulted. If you find that the defendant inflicted a grievous wound or wounds upon the deceased under circumstances which rendered the defendant criminally liable for some grade of offense for the death of the deceased, the defendant would be guilty of homicide, either murder or manslaughter, though you might find that the person wounded may have died from other causes set in motion by the said wound or wounds, or would not have died from said wound or wounds had not other natural causes operated with it; provided the said grievous wound or wounds so inflicted by the defendant, if any was inflicted by him, were inflicted in the manner alleged in the indictment and contributed mediately or immediately to the death of the deceased." The exceptions to this charge are that it instructed the jury that they could find the defendant guilty, even though the wound inflicted by him was not mortal, and even if the deceased died from natural causes operating with grievous wounds, and omitted any reference to improper medical treatment, or to "any act of the deceased which may have directly caused death, or whether or not the natural causes would have produced death independently of the wounds;" and that "the act of the defendant must be the direct, *Page 827 the immediate, the proximate cause of death, and if other independent causes preponderated largely as to the real, the efficient, and proximate cause, then the act of the defendant would be too remote to be considered the direct and proximate cause, whereas, under the charge, if the act of the defendant was a remote cause, an indirect cause, too remote to be the real, direct, proximate and efficient cause of death, yet the jury might find the defendant guilty." Immediately preceding the quoted excerpt the judge charged that "the State must prove beyond a reasonable doubt, not only that the defendant inflicted a grievous wound or wounds upon said deceased in the manner and as alleged in the indictment, but also that death actually resulted from said wound or wounds so inflicted." Immediately following the excerpt he charged: "However, . . even though you do find that the defendant did inflict a grievous wound or wounds upon the deceased for which the defendant would be criminally liable for some offense, yet if some intervening cause not set in motion by said wound or wounds caused the death of the deceased, then the defendant would not be criminally liable for said death; or if said wound or wounds did not contribute directly and thereby legally cause the death of the deceased, the defendant would not be criminally liable for said death." Later he charged, that "the burden is on the State to show that the death resulted because of said wounds inflicted . . by the defendant;" that if the jury believed that "the wounds were not the primary cause of her death, but that her death resulted from other diseases not attributable to any wounds which the defendant may have inflicted, then the defendant can not be convicted of the homicide," and "if you believe the primary cause of the death of the deceased was some other disease, either tuberculosis or syphilis or any other disease causing her death from natural causes, and the primary and proximate cause of her death was some disease naturally producing death, then the defendant is not guilty of the homicide." He also told the jury that the burden was on the State to show that "some violent act of the defendant was the primary and efficient cause of her death;" that the wound or wounds must have "caused the death of the deceased," and must have been "the primary cause which produced or set in motion other and secondary causes from which the deceased died."
The charge referred to in divisions 9 and 10 of the opinion, as *Page 828 to the presumption of malice, was as follows: "The law presumes every intentional homicide to be malicious until the contrary appears from the circumstances of alleviation, or justification, or mitigation or excuse; and I charge you that the burden is on the slayer, whenever an intentional homicide has been proved, to make out such circumstances of justification or excuse or alleviation to the reasonable satisfaction of the jury, unless they appear from the evidence produced against the defendant or slayer. If, however, the proof shows that the killing itself was done without malice, this presumption that the homicide was malicious does not exist, and the burden would be on the State to prove malice beyond a reasonable doubt; but if the accompanying proof does not disclose that an intentional homicide, if any, was done without malice, then the burden is upon the slayer to show that it was done without malice. I charge you, however, that this presumption which arises against the slayer where an intentional homicide is shown does not arise against the defendant unless it be first shown beyond a reasonable doubt that the defendant is the slayer. Unless it appears beyond a reasonable doubt that this defendant is the slayer, this presumption does not arise in this case, and has no application to the case, and you will not consider such rule in passing upon this case." The exceptions to these instructions are, that they erroneously instructed the jury as to the burden of proving or negativing malice; that they did not refer to the contention of the defendant, in his statement to the jury, that he struck the deceased to repel her assault upon him with an ice-pick; and that they in effect told the jury that the defendant's statement had not rebutted any presumption of malice, or shown any circumstance of mitigation, excuse, or justification. 1. The indictment for murder charged the offense in the language of the statute, and described instruments, including a hatchet used by the defendant in inflicting the alleged homicide, as being such as would likely produce death, and from the use of which death resulted. The indictment was not subject to demurrer on the grounds that it did not more particularly describe the weapon, or the character and manner of its use in the *Page 829 assault, or anticipate evidence which might be offered by the defendant as to the time intervening before death occurred. Nor was it necessary for the indictment to anticipate and negative testimony which might be offered by the defendant as to other independent causes of death. Code, § 27-701; Hall v. State,133 Ga. 177 (65 S.E. 400); Bowens v. State, 106 Ga. 760 (32 S.E. 666); Walker v. State, 124 Ga. 440 (52 S.E. 738).
2. 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. In this case, while the expert testimony indicated that the immediate cause of death was an infected condition and gangrenous abscess of the lung, these witnesses also testified that such final condition was brought about by the fracture and described mutilation of the decedent's skull, from which she had been continuously confined to bed since the time the injuries had been inflicted with a hatchet. Clements v. State, 141 Ga. 667 (1, 4), 669 (81 S.E. 1117), and cit.; Wells v. State, 46 Ga. App. 412, 417 (167 S.E. 709); Nelson v. State, 58 Ga. App. 243 (198 S.E. 305); Notes in 51 L.R.A. (N.S.) 877, 879, and cit.; 26 Am.Jur. 189-195 (§§ 45-53); 29 C. J. 1077-1083 (§§ 54-58); Bishop's Crim. L. (9th ed.), 480-485 (§§ 636-641); Wharton on Homicide (3d ed.), 38, 39 (§ 34). The instructions of the court as to the causal connection between the wounds and death were in essential accord with the preceding rules, and were full and fair to the defendant.
3. "Where character is put in issue, the direct examination must relate to general reputation, good or bad, as the case may be;" and "particular transactions, or statements of single individuals," can not be brought into the inquiry except on cross-examination, "in testing the extent and foundation of the witness's knowledge and the correctness of his testimony on direct examination." May v. State, 185 Ga. 335, 339 (195 S.E. 196); Moulder v. State, 9 Ga. App. 438 (71 S.E. 682). Nothing to the contrary was held in Powell v. State,101 Ga. 9 (1, a) (29 S.E. 309), *Page 830 65 Am. St. Rep. 277), where this rule was recognized. Therefore the court did not err in excluding testimony by the mother of the defendant, on direct examination, that he "had never been in trouble prior to the time that he and . . the deceased had their trouble."
4. A self-serving declaration by the defendant, in a conversation with a police officer at the time of his arrest three years after the alleged homicide, in which the defendant said that while he struck the deceased with a hatchet he did so because she was assaulting him with an ice-pick, was not admissible on the theory that it was in rebuttal of testimony by a brother of the deceased, that about the time of such conversation the defendant admitted to him the striking of the deceased and made no explanation, since the two transactions were separate, and the brother was not present at the conversation with the police officer, and the officer was not present at the conversation with the brother. See L. N. R. Co. v. Varner,129 Ga. 844-846 (60 S.E. 162); Myers v. State, 97 Ga. 76 (9) (25 S.E. 252).
5. The court did not err in admitting a hypothetical question asked by the State of a physician, and his answer, over grounds of objection that the alleged facts which formed the basis of the question had not been proved as a foundation for the question, that it called for a mere legal conclusion, and that the answer was objectionable because it stated such a conclusion as to the contributing cause of death; where there was testimony as to such basic facts, and the witness made no such general conclusion, but stated only as to the alleged diseases involved, their causes, and effects upon persons in the condition described.
6. On the subject of flight, the judge charged the jury: "That flight, if any, by one who is alleged to have done an act alleged to be a crime, immediately after the act and similar acts, if proven, from which an inference of consciousness of guilt may be drawn, may be considered by the jury; but flight is subject to explanation; the weight to be given to it or whether the jury will draw an inference of consciousness of guilt or not is for the jury. It is for the jury to determine whether the flight of the defendant, if such has been proven, was due to a sense of guilt or other reasons. If due to other reasons, no inference hurtful to the defendant must be drawn by the jury." This instruction was not subject to the exception that it intimated an opinion that the defendant had fled *Page 831 from a consciousness of guilt, or that it authorized the jury to convict the defendant from the circumstance of flight alone, where the defendant had admitted, and also stated to the jury, that during the three years after the injury to the deceased he had gone to Florida, although in his statement he said that this was because of his fear of the two brothers of the deceased. SeeLuke v. State, 183 Ga. 302 (188 S.E. 542); Smith v.State, 43 Ga. App. 353 (2) (158 S.E. 770); Taylor v.State, 59 Ga. App. 396 (1 S.E.2d 52); Cann's Requests to Charge, §§ 595-597.
7. Exception is taken to the following charge, which gave verbatim the following requested instruction, except (as stated by the court in an explanatory note) the word "the" instead of "a" was inadvertently used before the word "crime:" "In this connection I charge you that the burden is upon the State in this case to prove the corpus delicti, which means that the crime was committed as alleged, and the burden is on the State to show that the death of the deceased resulted because of wounds inflicted upon her by the defendant. If you believe that the defendant did inflict wounds upon the deceased, but that the wounds were not the primary cause of her death, but that her death resulted from other diseases not attributable to any wounds which the defendant may have inflicted, then the defendant can not be convicted of the homicide." Considered in connection with the context, and the use of the words, "as alleged" immediately following, there is no merit in the contention that the use of "the" before "crime" was an expression of opinion that there was a crime, and that the defendant's contention of justification was untrue. See Wilson v. State, 152 Ga. 337 (4), 342 (110 S.E. 8).
8. The following instruction was not subject to the exception that it omitted the idea of premeditation or deliberation, and was likely to constrain the jury to convict of murder instead of manslaughter: "Did the defendant make an unjustifiable assault upon [the deceased] with a weapon likely to produce death and inflict upon her [a] wound or wounds with malice aforethought, either express or implied, from which wound or wounds she did within a year die from their infliction? If so, you would be authorized to find him guilty of murder." Elsewhere the judge charged fully on the law of murder, malice, voluntary manslaughter, justifiable homicide, assault with intent to murder, assault and battery, and *Page 832 with full and fair instructions gave to the defendant the benefit of a submission to the jury of each of the lesser offenses. The references to "malice aforethought" and "unjustifiable assault" in the language in question obviated any ground for the attack made.
9. "If a homicide is shown beyond a reasonable doubt to have been committed by the defendant, the law presumes that it is malicious until the contrary appears, unless the evidence adduced by the State shows justification or mitigation or excuse; and if the evidence adduced by the State does not show circumstances of justification, mitigation, or excuse, it would then devolve upon the defendant to show such circumstances in order to reduce the homicide from murder to manslaughter or to justify it." Warren v. State, 140 Ga. 227, 229 (78 S.E. 836). The charge on the presumption of malice was in full accordance with these principles of law.
10. Nor was the charge relative to the presumption of malice erroneous as failing to refer particularly to the fact that the defendant had stated to the jury that he struck the deceased in self-defense to repel her assault upon him with an ice-pick, where there was no request for such a charge, and the judge instructed the jury as to their right to believe the statement of the defendant in preference to the sworn testimony. Irby v.State, 95 Ga. 467 (4) (20 S.E. 218); Carroll v. State,99 Ga. 36 (2) (25 S.E. 680); Darby v. State, 79 Ga. 63 (8), 69 (3 S.E. 663); Robinson v. State, 114 Ga. 56 (4), 57 (39 S.E. 862); McCrary v. State, 141 Ga. 4 (2) (80 S.E. 305); Hawkins v. State, 141 Ga. 212 (2) (80 S.E. 711);Harris v. State, 136 Ga. 107 (70 S.E. 952); Cook v.State, 134 Ga. 347 (4) (67 S.E. 812). Furthermore, although the defense of justifiable homicide was raised only by the statement of the defendant to the jury, the judge charged not only the law of justifiable homicide, but, as to the specific contention, that "if you believe that [the deceased] made an assault upon the defendant with an ice-pick or other dangerous instrument, and the defendant was justified as a reasonably courageous man in believing she was about to take his life or was about to commit a felonious assault upon him, the defendant would be justified in taking such measures as were reasonably necessary, or apparently so, to prevent such an assault, and that if in the exercise of such measures he killed [the deceased], or committed an assault upon her with the intention to *Page 833 kill her, then such killing or assault to kill would be justifiable, and the defendant would be guilty of no offense, and you should acquit him."
11. The verdict of guilty of murder was authorized, under the testimony for the State as to the circumstances under which the deceased was found, with ten or more hatchet wounds on her head, her skull fractured, and her legs tied together with rope; as to the living of the defendant and deceased together in the house where she was found, and the removal of the defendant to another State until his arrest three years afterwards; as to the admission by the defendant to a brother of the deceased that he had struck her with a hatchet, without any exculpatory explanation; and under the testimony of physicians (although she did not die until about eight months after the infliction of the wounds, and the immediate cause of death was an infected or gangrenous abscess of the lung), that "the wounds on the head" were "the primary cause of her trouble," the "cause of death," and that the infection and gangrenous condition were "secondary to the infected wounds that she had at the beginning."
Judgment affirmed. All the Justices concur.