Vincent v. State

Hines, J.

(After stating the foregoing facts.)

1. In the first ground of his amendment to his motion for new trial the defendant alleges that the court erred in refusing to permit W. T. Brooks, a witness for the State, to answer a question propounded to him by counsel for the defendant. This witness was asked if the defendant, on entering the place of business of the deceased on the occasion of the homicide, did not appear to be speaking good naturedly and in good humor, and was smiling, when he addressed the deceased and those with the latter. Counsel for the State objected to this question, on the ground that it was incompetent, and that the witness should state how the defendant appeared. The court sustained the objection and refused to permit the witness to answer this question. This was error. The conduct, manner, and appearance of the defendant, whose actions and utterances are parts of the res gestae, are relevant evidence; and the witness may testify to such conduct, manner, and appearance, without giving the facts upon which he bases his statement. The witness could state that the defendant was smiling, without telling the jury how he knew he was smiling. lie could testify that the defendant spoke good naturedly, without narrating the facts on which he based his opinion. Leary v. Leary, 18 Ga. 696; Travelers Ins. Co. v. Sheppard, 85 Ga. 751 (8), 778 (12 S. E. 18); Roberts v. State, 123 Ga. 146 (6), 161 (51 S. E. 374); Glover v. State, 15 Ga. App. 44 (5), 54 (82 S. E. 602). But it appears from the brief of - evidence that this witness, on his cross-examination, testified that the defendant apparently spoke pleasantly when he saluted the deceased -in the garage at the commencement of the rencounter which ended in this homicide. While the court first refused to admit this evidence, he must have subsequently admitted it; and this cured any error in its prior rejection. Woods v. State, 137 Ga. 85 (3) (72 S. E. 908).

2. We will take up next the second, fourth, fifth, sixth, and minth grounds of the defendant’s amendment to his motion for new trial. These grounds deal with the rulings of the court upon the admissibility of evidence of previous threats made by the deceased against the defendant, and of the admissibility of evidence touching the conduct of the deceased toward the defendant on Wednesday night prior to the homicide on the following Saturday. Touching the second ground it is sufficient to say that the witness, W. T. Brooks, who was a witness for the State, did not know of any threats made by the deceased toward the defendant, or of any hostile conduct on the part of the deceased toward the defendant. This disposes of this ground. In the fourth ground it is complained that the court erred in refusing to permit Ealph Harris, a witness for the defendant, to testify that the deceased had, on the previous Wednesday, threatened to kill the defendant, and had armed himself with a pistol for this purpose. The court ruled that, in the then state of the record, this testimony was not admissible, and would not be until there was some evidence before the court of the commission of an overt act on the part of the deceased at the time of the killing. The court further ruled that whether such evidence would become admissible, after the defendant had made his statement, would be passed on then by the court. This witness for the defendant was sworn before the defendant had introduced any evidence, or had made any statement, concerning the circumstances accompanying the commission of this homicide. He was likewise sworn before there was' any proof that knowledge of these threats or of this hostile conduct had been brought to-the knowledge of the defendant.

As a preliminary foundation to the admissibility of an uneommunicated threat by the deceased against the defendant, it must be shown that the deceased was the assailant in the fatal encounter, 'or did some overt act showing an intention to carry that threat into execution. Lingo v. State, 29 Ga. 470 (2); Hoye v. State, 39 Ga. 718; Peterson v. State, 50 Ga. 142; Vaughn v. State, 88 Ga. 731 (16 S. E. 64); Trice v. State, 89 Ga. 742 (15 S. E. 648); May v. State, 90 Ga. 793 (17 S. E. 108); Pittman v. State, 92 Ga. 480 (17 S. E. 856); Nix v. State, 120 Ga. 163 (2), 165 (47 S. E. 516); Pride v. State, 133 Ga. 438 (66 S. E. 259); Rouse v. State, 135 Ga. 227 (4-a), 228 (69 S. E. 180); Warrick v. State, 125 Ga. 133 (53 S. E. 1027).

The' proper foundation for the admission of uncommunicated threats can not be laid by the defendant’s statement alone. Vaughn v. State, Pride v. State, Rouse v. State, supra.

As the proper preliminary foundation had not been laid at the stage of the case when the court rejected this testimony, the ruling complained of in this ground was not erroneous.

In Peterson v. State, 50 Ga. 142, Judge McCay said, “The Keener case carries the question of the admissibility of such testimony to the point of-extreme liberality, and is difficult to reconcile with Howell’s case, 5 Georgia, and Monroe’s case, 5 Georgia. We clo not feel authorized to go any further in the direction of the Keener case than its terms require.”

When the evidence leaves it doubtful as to which of the parties began the mortal combat, and there is testimony tending to show that the slayer killed his adversary in self-defense, evidence of this character may be received to show the state of mind or feeling on the part of the deceased, and thus illustrate his conduct and throw light upon his intention and purpose in the fatal encounter. “ This,” this court has said, “ is the substance of what is ruled in the case of Keener v. State, 18 Ga. 194.” May v. State, 90 Ga. 793, 797 (17 S. E. 108). These cases do not conflict with the general rule above stated, that uncommunicated threats made by the deceased toward the defendant are not admissible, unless the deceased was the assailant or provoked the difficuhy, or unless the question of who provoked the difficulty is in doubt.

The court erred in refusing to permit A. J. Collins, a witness for the defendant, to testify that on Wednesday night before the homicide on the next Saturday, he was in the northwest corner room of the Jones hotel, asleep, when he was awakened by a voice which he did not know, saying, “You G — d — d s — of ab —, you are in one of these rooms, and if you show j^our face I will kill you; if I can’t find jura I will go down stairs, look on the register and see what room you are in,” and that later he heard the same voice saying, “ If I can’t And you to-night, I will get you to-morrow.” The witness stated that he did not communicate these threats. There was evidence by other witnesses that these threats were made by the deceased toward the defendant, and that they had been communicated to him prior to the homicide. This witness was sworn after the defendant had made his statement. In view of this situation we are of the opinion that this evidence was admissible to corroborate the testimony of the other witnesses who swore that these threats had been made. The fact that they had not been communicated by this witness to the defendant does not render them inadmissible, as they had been communicated to the defendant by other witnesses who heard them.

3. In the seventh ground of the defendant’s amendment to his motion for new trial, it is claimed that the court erred in requiring Ora Bell Jones, a witness for the defendant, on cross-examination, to testify, over objection of the defendant, that in the room at the Jones hotel occupied by the defendant and two other men, one of whom was a man by the name of Mattingley, on Wednesday night before the homicide, there were two beds, on both of which there was vomit and a large place of vomit on the floor by the side of each bed. The objection to this testimony was that it was irrelevant and immaterial. We think this testimony was irrelevant. It threw no light on the question being tried by the jury. Was it harmful error ? In view of the evidence, we can not say that the admission of this irrelevant testimony was not prejudicial' to the defendant. It was calculated to prejudice his case in the eyes of the jury, and should have been excluded.

4. In the tenth ground of this amendment it is urged that the court erred in interrupting the defendant while making his statement, under .the circumstances which will now be stated. After the defendant had stated, “ We tried this case once before, tried it last August. We had twelve men on the jury like we have this afternoon,” the court interrupted him and said, “ Don’t go into what occurred last August; that is no part of this case.” The defendant then whispered to the judge that he was going to state that the jury (on the previous trial) stool eleven to one for his acquittal. The court then stated that he could not make that statement. It is insisted that this ruling deprived the defendant of his right to make such statement as he deemed proper in his own defense, and that he had a right to do this without being restricted or governed by the rules controlling the admissibility of evidence.

The prisoner has “ the right to make to the court and jury such statement as he may deem proper in his defense.” Penal Code, § 1036. The court may so far control his statement as to prevent long, rambling, and irrelevant matter. Yet as to all matters connected with the case he may make such -statement as he thinks proper, and should not be restricted to stating such facts as would be admissible in evidence. Coxwell v. State, 66 Ga. 309 (5); Hackney v. State, 101 Ga. 512, 519 (28 S. E. 1007); Richardson v. State, 3 Ga. App. 313 (59 S. E. 916).

While considerable latitude has been allowed the defendant in making his statement, he has never been allowed to state matters wholly irrelevant, or such as would be violative of every rule of evidence. Montross v. State, 72 Ga. 261 (4-a), 266 (53 Am. R. 840); Howard v. State, 73 Ga. 83 (2). The judge may interrupt the defendant when he makes irrelevant statements, and instruct him to confine his statement to the case. King v. State, 9 Ga. App. 609 (71 S. E. 943).

While the presiding judge, in the exercise of a sound discretion, can- require the accused to omit from his statement reference to entirely irrelevant matters, it is not contemplated by our law that he should be embarrassed and circumscribed by the rules which control the admissibility of evidence. Hackney v. State, supra. Tiget v. State, 110 Ga. 244 (34 S. E. 1023).

How the jury stood on the former trial of this ease was wholly irrelevant to the present trial. It could throw no light whatever on the issue being tried. So the court did not err in interrupting the defendant and instructing him that he could not make any statement to the jury on this subject.

5. In the thirteenth ground of the motion for new trial, the defendant insists that the court erred in charging the jury as follows : “ I charge you that the defendant had a right to go peaceably, on a peaceful mission, into the place of business of Treadwell, provided he did not expect as a reasonable man that his presence there would be unwelcome to Treadwell and would provoke a difficulty. He had no right-to arm himself and go to the place of business of deceased, if he ought to have expected as a reasonable man that his presence there would be unwelcome and would provoke a difficulty.” The defendant asserts that this excerpt from the charge is not a correct statement of the law; that the language, “provided he did not expect as a reasonable man that his presence there would be unwelcome and would provoke a difficulty,” nullified the correct statement of the law given in the first part of the charge; that this language tended to inflame the jury against him; that the language “he had no right to arm himself and go to the place of business of the deceased, if he ought to have expected as a reasonable man that his presence there would be unwelcome and would provoke a difficulty,” is an incorrect statement of the law, and was especially prejudicial and hurtful to him; that, as the place of business of the deceased was a public place, he had a right to go there upon a peaceful mission, and that this charge placed him beyond the protection of the law. We do not think that this charge correctly states the law on this subject. The right of the defendant to seek an interview with the deceased depended, not on the soundness.of his judgment in determining the consequences thereof, but upon the intent with which he sought such interview. If his mission was peaceful and for the purpose of bringing about a reconciliation between himself and the deceased, and not for the purpose of provoking a difficulty, in order to avenge himself for the conduct of the deceased at the hotel on the previous Wednesday night, he would not put himself beyond the pale of the law, although he may have exercised bad judgment in this matter. If the object of his interview was a hostile one, for the purpose of seeking revenge, or to kill the deceased, then he would have been the provoker of the difficulty; and having provoked it, he could not rely upon the conduct of the deceased under such circumstances to justify the homicide. Roberts v. State, 65 Ga. 430. The fact that the defendant armed himself, if this was not for the purpose of attack, but for the purpose of defense, would not deprive him of his right to seek a peaceful interview with the deceased. Thompson v. U. S., 155 U. S. 271 (15 Sup. Ct. 73, 39 L. ed. 146).

6. In the seventeenth ground of the motion the following charge is complained of: “ Legal malice is the intent unlawfully to take away the life of a human being. Malice may be presumed from the use of a deadly weapon in a way and manner likely to produce death. If you find from the evidence that on the occasion under investigation the defendant shot and killed Smith Treadwell, and that in so doing he was actuated by malice, either express or implied, according to the definition of express and implied malice given you in charge, the defendant would be guilty of the offense of murder, and it would b"e your duty to so find.” The errors assigned are, (1) that the language, “Legal malice is the intent unlawfully to take away the life of a human being,” is an incorrect statement of the law, and (2) because it eliminates premeditation as the essence of murder. This definition of malice is incorrect. It eliminates all idea of deliberation or premeditation. It instructed the jury that the intent to kill and the unlawfulness of the killing constituted malice. It requires the unlawful, intentional billing of a human being with malice to constitute murder. An unlawful, intentional killing, without malice, would amount to voluntary manslaughter. Dowdy v. State, 96 Ga. 653 (23 S. E. 827).

Malice is the deliberate intent unlawfully to take away the life of a fellow creature, and may be express or implied. Jones v. State, 29 Ga. 594, 607; Bailey v. State, 70 Ga. 617; Carson v. State, 80 Ga. 170 (5 S. E. 295); Taylor v. State, 105 Ga. 746 (31 S. E. 764); Mann v. State, 124 Ga. 760, 766 (53 S. E. 324, 4 L. R. A. (N. S.) 934); Worley v. State, 136 Ga. 231 (71 S. E. 153); Curry v. State, 150 Ga. 736 (105 S. E. 361).

7. In the nineteenth ground of the motion exception is taken to this charge: “ Tf you find that the deceased had threatened the life of the defendant, and had a pistol for the purpose of killing him, that would not justify the defendant in going to the deceased’s place of business with the intent to kill him, and, in pursuance of such intent, taking his,life.” The errors assigned are, (1) that this instruction is not a correct statement of the law; (2) that the language, “ that would not justify the defendant in going to the deceased’s place of business with the intent to kill him, and, in pursuance of such intent, taking his life,” is erroneous (a) because not based upon the evidence, '(b) is argumentative, and (c) amounts to an expression of opinion by the court that the defendant went to the place of business of the deceased to kill him, and, in pursuance of such intent, took his life. None of the exceptions to this charge are good, unless the language of the latter part thereof amounts to an expression or intimation of opinion by the court. The language, “ that would not justify the defendant in going to the deceased’s place of business with the intent to kill him, and, -in pursuance of such intent, taking his life,” does amount to an expression or intimation of opinion by the court that the defendant went to the deceased’s place of business with the intent to kill him, and in pursuance of such intent did take his life. As this instruction did assume as true these facts, it would for that reason be objectionable, and requires the grant of a new trial. Vaughn v. Miller 76 Ga. 712 (1-b).

8. In the twenty-first ground the defendant complains that the court erred in failing to give in charge to the jury section 76 of the Penal Code. Where the court fully instructed the jury as to the law of justifiable homicide, and its effect upon their verdict, the failure to charge this section was not error. Robinson v. State, 118 Ga. 198 (4) (44 S. E. 985); Taylor v. State, 121 Ga. 348 (10), 356 (49 S. E. 303); Worley v. State, supra.

9. In the twenty-second and twenty-third grounds the defendant alleges that the court erred in failing to give in charge to the jury the law of voluntary manslaughter. Is voluntary manslaughter involved in this case, under the evidence ? On Wednesday night, prior to the homicide on Saturday following, the deceased became enraged because of certain conduct of the defendant on the automobile trip from Crandall to Chatsworth, which offended the sister of the former. The deceased went to the hotel where the defendant was stopping, cursed and abused the defendant, but not in the presence or hearing of the latter, threatened to kill him, and stated that if he did not get him that night he would get him the next day. These threats and this conduct of the deceased were made known to the accused the next morning. The following Saturday morning the defendant went to the garage of the deceased. When-he went into this garage the deceased was sitting in an automobile, patching an inner tube. W. T. Brooks. Walter Johnson, and Boy Baggett were around the car in which the deceased was sitting. When the defendant came in he said, “Good morning, gentlemen,” He asked if Mr. Treadwell was in. There was no reply to this question. The defendant then walked around to the right side of the car, stood about even with the windshield, and said, “ Smith Treadwell, you are the man that was looking for me the other night, wasn’t you ? ” and then pulled out his gun and went, to shooting the deceased. When the deceased was shot he was pulling the patch off an inner tube. The deceased did not say anything to the defendant. When the first shot was fired he looked up for the first time. The eye-witnesses did not see any movement on the part of the deceased when this shot was fired. The defendant shot the deceased four or five times. This is the State’s theory of the homicide, as proved by the eye-witnesses.

The defendant’s account of the fatal tragedy is as follows: “ I walked in the garage and saw these bo}rs that have testified. I was in a good humor, had no ill will or ill spirit against anybodv. I spoke to them pleasantly, said, “ Good morning,” and they spoke to me, and I walked on down on the left side of the car, like these boys described it to you, came around on the right and spoke to them, and asked if Mr. Treadwell was in the garage, and Smith Treadwell didn’t speak. I did not know him at the time, and Mr. Brooks says, ‘ That’s him over there,’ pointing to Smith Tread-well, wlio was sitting on the right-hand side of the front seat. By that time I had walked around on the right-hand side of the car, on the south side; and when I got even with the front wheel there, I says, ‘ Are you the man that was up at the hotel the other night to shoot me? ’ just in a quiet, ordinary tone of voice. I did not know which was which at the time, and he had something in his hand, and soon as he looked up and recognized me he ran his hand in his bosom this way [indicating], and I thought he was trying to get his pistol. I had mine in my left hip-pocket. I got it out; in firing I fired that first shot from my hip as I came out with it. I fired only three shots, I am satisfied in my own mind; some of them say four, and some three. I am satisfied that other shot came from Smith Treadwell’s own gun, because I am sure he grabbed it just as I asked him that question. He reached his hand in his bosom there [indicating], and I am sure he had his hand on the butt of that gun when that bullet struck his arm here [indicating] .”

The evidence for the State makes a clear ease of unjustifiable homicide. The statement of the defendant tends to establish justifiable homicide based upon his right to defend himself against one who was manifestly intending or endeavoring, by violence or surprise, to commit a felony on his person or to take his life, and based upon the doctrine of reasonable fears. If manslaughter is involved in this case, it arose from the statement of the defendant alone; and it was not error for the court to fail to charge upon any theory of defense which rested alone upon his statement, in the absence of a timely written request by the defendant to the court to charge thereon. Felder v. State, 149 Ga. 538 (101 S. E. 179); Roberts v. State, 143 Ga. 71 (84 S. E. 122); Griggs v. State, 148 Ga. 211 (96 S. E. 262); Pollard v. State, 144 Ga. 229 (86 S. E. 1096).

10. In the thirty-third ground the defendant complains of the refusal of the court to give in charge to the jury the following, on written request: “L charge you, gentlemen of the jury, that in arriving at a correct conclusion in homicide cases, the killing should be viewed from the defendant’s standpoint.” This request does not embody a correct principle of law. The initial viewpoint or standpoint of the jury is that of the law, which presumes that the defendant is innocent, and which puts on the State the bupc[en of rebutting this presumption and of establishing his guilt beyond a reasonable doubt. In determining'whether the State has carried this burden, the jury must view the case from all angles and all standpoints. They must view the case from the standpoint of the State, as disclosed by its evidence.. They must view the case from the standpoint of the defendant, as disclosed by his evidence and his statement. They must view the-whole case with the view of ascertaining the truth, which is the object of all legal investigation. When the defense is set up that the circumstances surrounding the slayer are sufficient to excite the fears of a reasonable man that his life was in danger or a felony was about to be committed upon his person, and that the slayer acted under the influence of -those fears and not in a spirit of revenge, the question has been raised as to from what standpoint the jury should consider the case. Whether the belief that the danger is apparently imminent is to be viewed from the standpoint of the defendant, or from that of a reasonable man, or from that of the jury, has been much mooted. ' 13 E. C. L. 817, § 122. To justify a homicide, the fears of the slayer must be those of a reasonable man, one reasonably courageous, reasonably self-possessed, and not those of a coward. Teal v. State, 22 Ga. 76 (68 Am D. 482) ; Gallery v. State, 92 Ga. 464 (3) (17 S. E. 863); Dover v. State, 109 Ga. 485 (34 S. E. 1030); Coleman v. State, 141 Ga. 731 (5) 736 (82 S. E. 228); Williams v. State, 145 Ga. 177 (88 S. E. 958); Smoot v. State, 148 Ga. 306 (96 S. E. 561). "Cnder these decisions the killing must be viewed from the standpoint of a reasonably courageous man. If the defendant happens to be a man not reasonably courageous, then the killing can not be viewed from his standpoint. The law makes no discrimination in favor of a drunkard, a coward, or any particular individual; but the circumstances must be such as to justify the fears of a reasonable man. Golden v. State, 25 Ga. 527. Our Penal Gode declares that the fears must be those of a reasonable man. Penal Code, § 71.

In Monroe’s case, 5 Ga. 85, 138, the court said: “ We must substitute ourselves in the shoes of the defendant.” But this question was not raised in that ease; and so far as our limited investigation has gone, this particular point has not been raised in any decision rendered by this court. Section 71 of the Penal Code fixes the standard-by which the sufficiency of fears to justify a killing must be determined. “ It must appear that the circumstances were sufficient to excite the fears of a reasonable man.” In the cases cited above, this court has held that such fears must not be those of a coward, nor those of a drunkard. They must measure up to those of a reasonably courageous man. A defendant may kill another, honestly believing that it is necessary to kill to save his own life, or to prevent the commission of a felony upon his person; and yet he would not be justified, if the circumstances surrounding him at the time were not sufficient to excite the fears of a reasonable man. A timid man may kill, honestly believing that his life is in danger or that a felony is about to be committed upon his person. Still he will not be justified unless his fears come up to the standard fixed by this section of the Penal Code. The prevailing rule in America seems to be “ that the apprehension of danger and belief of the necessity which will justify killing in self-defense must be a reasonable apprehension and belief, such as a reasonable man would under the circumstances hgve entertained.” 13 B. C. L. 818, § 122; Pinder v. State, 27 Fla. 370 (8 So. 837, 26 Am. St. R. 75); State v. Beckner, 194 Mo. 281 (91 S. W. 892, 3 L. R. A. (N. S.) 535); State v. Duncan, 86 S. C. 370 (68 S. E. 684, Ann. Cas. 1912A, 1016); Nash v. U. S., 229 U. S. 373 (33 Sup. Ct. 780, 57 L. ed. 1232). This rule seems to be in consonance with section 71 of the Penal Code and with the decisions of this court above referred to. So the court, in our opinion, did not err in refusing to instruct thé jury on this subject as requested by the defendant.

11. Many questions are raised in the forty-three grounds of the motion for new trial in this case. We have given careful and laborious attention to all of them. Some, such as the remark made by a bystander in the presence of the jury, as coming from the judge, and some which refer to the ineompetency of some of the jurors to try the defendant because of undue bias and prejudice against him, can not arise on the next trial of this ease. Others refer to requests to charge, which were covered by the general charge. Other grounds complain of rulings in which we find no error. For these reasons we do not refer to them specifically.

As a new trial is granted in this case, we make no ruling on the evidence.

■Judgment reversed.

AM the Justices concur, except Gilbert, J., dissenting from the ruling in the 7th headnote.