Currie v. State , 156 Ga. 85 ( 1923 )

Hines, J.

The court refused, although duly requested in writing, to charge the jury as follows: (1) “ If you find from the evidence that the mind of the defendant at the time of the killing was diseased, that by reason of such mental disease his will power was impaired, that by reason of such impairment, so caused, he did not have sufficient will power to refrain from committing the act, and that the act was the product of such mental disease, he was not responsible for the act and it would be your duty to acquit the defendant. To be held criminally responsible, a man must have reason enough to be able to judge of the character and consequence of the act committed, and he must not have been overcome by. an irresistible impulse arising from mental derangement.” (2) “In order to constitute a crime, a man must have intelligence and capacity enough to have a criminal intent and purpose: and if his reason and mental powers are either so deficient that he has no will, or if through the overwhelming power of mental disease Ms intellectual power is for the time obliterated, he is not a responsible moral agent, and is not' punishable for criminal acts.” The principles of law, in so far as correct and applicable, embodied in the foregoing requests, were fully and fairly covered by the court in the general charge; therefore these grounds of the motion do not show error.

The third ground of the amendment to the motion for a new trial complains that the court erred in charging the jury as follows : “ There is no manslaughter involved in this ease, either voluntary or involuntary. Either the defendant in this ease is guilty of murder and should be convicted, or the State has failed to make good its case beyond a reasonable doubt, and he should be acquitted. Or he has made good by the preponderance of the evidence, if you should so find, his contention of mental irresponsibility, and should be acquitted and discharged by this jury.” The testimony relied upon to show manslaughter was that of the witness McLeod, who testified, with reference to an alleged confession of the defendant, as follows: “He [defendant] started to get the whisky, and Burleigh asked him to pay his car-fare before he went, and he told him to wait until he came back, and Burleigh took out his knife and started towards him, and he said he pulled his pistol and Burleigh wheeled to run, and he said he shot him.” The testimony here quoted is a disconnected part of the alleged confession related by the witness. Taken as a whole, the evidence did not require a charge on the subject of either voluntary or involuntary manslaughter.

The fourth ground of the amendment to the motion for a new trial complains, that “the court did not at any place in its charge state that the evidence of insanity could be considered with the other evidence of the case in determining whether or not the defendant was guilty beyond a reasonable doubt, and that if in considering all the evidence including the evidence of insanity the jury entertained a reasonable doubt as to the defendant’s guilt they should acquit him.” The court did charge fully and fairly upon the subject of reasonable doubt as applicable to the entire evidence. The court also charged that “in all eases of circumstantial evidence, the circumstances must not only be consistent with a man’s guilt, but must be inconsistent with his innocence, and must exclude every other reasonable conclusion or hypothesis save and except only the guilt of the accused.” Finally, at the conclusion of the charge, with reference to the form of the verdict, the court again charged that if “ the State has failed to make good its case beyond a reasonable doubt, the defendant should be acquitted.” The evidence bearing on the question of insanity should, of course, be duly considered, along with all of the evidence in the case, in determining whether there was a reasonable doubt of the guilt of the accused. In the absence of a proper written request, mere failure of the court to charge the principles just indicated is not cause for a new trial, the general charge being sufficiently full and fair on the subject of reasonable doubt to give the accused the benefit of all the evidence relating to his alleged insanity, for the purpose of casting a doubt upon his guilt. Carr v. State, 96 Ga. 284 (5) (22 S. E. 570); Brown v. State, 148 Ga. 264, 265 (96 S. E. 435).

The fifth ground of the amendment to the motion for a new trial complains that the court charged as follows: “ If the State shows that the defendant did the things that go to constitute murder, convict him unless he carries the burden then of showing, by the preponderance of the evidence, that he is not mentally responsible for the act that the State charges he committed.” The errors alleged are: (1) that the judge'“did not here or elsewhere charge the jury that the evidence of insanity could be considered with the other evidence in the case in determining whether or not the defendant was guilty beyond a reasonable doubt, and if in considering the evidence as a whole, including that of insanity, the jury entertained a reasonable doubt, they should acquit him;” and (2) that this instruction expressly excluded from the consideration of the jury the evidence of insanity in determining whether it and the other evidence raised a reasonable doubt of the defendant’s guilt. A majority of the court are of the opinion that the judge did not err in giving this instruction. Carr v. State, Brown v. State, supra. Peek v. State, 155 Ga. 49 (116 S. E. 629).

In the sixth ground of the amendment to his motion for new trial, the defendant alleges and complains that he did not have a fair and impartial trial, because Wade Mitchum, a member of the jury who convicted him, was the illegitimate third cousin of the deceased, this relationship arising on the paternal side of the juror, oi which relationship he and his counsel did not have knowledge until after his conviction. Does the proof establish this relationship? M. M. Williamson, in his affidavit attached to the motion for new trial, testified as follows: “I am 60 years old and a citizen of said county, and am a son of Lecy Williamson. The deponent’s mother, Lecy Williamson, and Millie Phillips were own sisters; that Millie Phillips was deponent’s aunt and was the mother of Ephraim Phillips; and that Ephraim Phillips was the father of Burleigh Phillips. That deponent and Burleigh Phillips are second cousins. That deponent and A. S. Williamson are brothers, and that Lecy Williamson was A. S. Williamson’s mother. That A. S. Williamson is the father of Wade Mitchum, and that said Wade Mitchum was one of the jurors who tried the case of the State vs. Lee Curry, at the May adjourned term of Toombs superior court, 1922, charged with the killing of Burleigh Phillips, in which said case a verdict of guilty was returned by the jury trying the same, against the said Lee Curry. It is common repute in the community that A. S. Williamson is Wade Mitchum’s father, and that the said A. S. Williamson does not deny the same, in fact admits it. That the said Wade Mitchum admits the same, and calls the said A. S. Williamson Daddy and calls this deponent Dncle; and deponent attaches hereto .an order written by the said Wade Mitchum to this deponent in which he addresses deponent as “Dear Dncle.” The said A. S. Williamson is second cousin to the said Burleigh Phillips, and the said Wade Mitchum was third cousin to the said Burleigh Phillips whom Lee Curry was on trial for killing.” The order referred to in the above affidavit is as follows: “Dear Dncle: We are up a tree about feed; loan or sell us two bushels of corn and 50 bundles of oats, and oblige Wade Mitchum.” In his affidavit E. B. Williamson swore as follows: “ That Wade Mitchum is the reputed son of A. S. Williamson. . . That the mother of said Wade Mitchum swore that said A. S. Williamson was the father of the said Wade Mitchum; and it is generally reputed in the community and is common repute therein that the said A. S. Williamson is the father of the said Wade Mitchum, and that the said A. S. Williamson admits the same. That the said Wade Mitchum resembles very much the said A. S. Williamson, talks and acts like him, and to the best of deponent’s knowledge and belief A. S. Williamson is Wade Mitchum’s father.” A. S. Williamson testified by affidavit as follows: “I am 54 years of age and a citizen of said county, and am a son of Lecy Williamson. That deponent’s mother, Lecy Williamson, and Millie Phillips were own sisters. That Millie Phillips was deponent’s aunt and was the mother of Ephraim Phillips, and that Ephraim Phillips was Burley Phillips ’ father. That deponent and Burley Phillips were second cousins. That deponent is the father of Wade Mitchum, or at least his reputed father, the mother of the said Wade Mitchum having sworn that deponent was the father of the said Wade Mitchum, and it being common repute in the neighborhood and generally recognized that deponent is the father of the said Wade Mitchum, which fact is admitted and recognized by deponent. That he is the father of the said Wade Mitchum.”

In this ground of the motion for new trial it is stated that this juror was a third cousin of the deceased. The trial judge specifically approves the statements of fact therein as true and correct. Furthermore, in his order overruling the motion for new trial the trial judge makes this statement: “ It appears that the juror alleged to be related is not related in any way recognized by law.” Taking the certification of the facts in the amended motion for new trial and the above statement and his order overruling the motion, it clearly appears that the trial judge found, as a matter of fact, that the juror was the illegitimate third cousin of the deceased, and that he held that while this was true such relationship was not recognized by law. From the above testimony, which states all of the evidence relating to the kinship of this juror to the deceased, and from the fact that the judge specifically approved the recital of this relationship, and from the fact that the judge in his order treated this illegitimate relationship as established, but held, as a matter of law, that it did not disqualify the juror, I am forced to the conclusion that the relationship of the juror to the deceased was fully established. Considering, but not admitting} that the relationship could not be established by general repute outside of the family circle, it was established by general repute in the family circle, and by the direct testimony of the reputed father. The State introduced no evidence to rebut this testimony of the defendant, and it stands uncontradicted. But the position taken by the able trial judge, as we understand it, is that a bastard, the relationship arising on the paternal side, is not an incompetent juror to try a defendant charged with murder, because of his kinship to the deceased, because the law does not recognize such kinship. At first blush, this position might seem to be well taken. It is- based upon the ancient common law, that a bastard is the son of no one, but is the son of the people. Gui pater est populus, non habet ille patrem. Gui pater est populus, pater est sibi nullus et omnis. 1 Coke upon Littleton, 123 a. Being the son of no one, he could have no paternal relatives. A challenge “propter affectum, for affection, or partialitie,” is a principal challenge to the poll. So a challenge to a juror on the ground of relationship is a principal challenge to the poll. “A bastard,” says Sir Edward Coke,' “ cannot be of kindred to any; and therefore it can be no principal challenge.” 1 Coke upon Littleton 157 a. So, if this were the law of the land, this juror would not have been disqualified to try the defendant. But the rule that a bastard was nullius filius. applied only to cases of inheritances. Garland v. Harrison, 8 Leigh (35 Va.), 368. So it has been held that bastards can not marry within the prohibited degrees.' Hains v. Jeffell, 1 Lord Raymond, 68. So incest may be committed with an illegitimate female. Brown v. State, 42 Fla. 184 (27 So. 869); People v. Lake, 110 N. Y. 61 (17 N. E. 146, 6 Am. St. R. 344); Clark v. State, 39 Tex. Cr. R. 179 (45 S. W. 576, 73 Am. St. R. 918). These cases upon marriage with illegitimates and upon incest committed with bastards can only be upheld on the ground that the rule that a bastard is nullius filius is applicable only to inheritances.

We can not escape the fact that the stern and harsh rules of the common law, governing this unfortunate class, have been softened with the advance of our civilization. By the common law the putative father was under no obligation to support his bastard child. Moncrief v. Ely, 19 Wend. 405; Simmons v. Bull, 21 Ala. 501 (56 Am. D. 257); Brisbin v. Huntington, 128 Iowa, 166 (103 N. W. 144); Todd v. Weber, 95 N Y. 184 (47 Am. R. 20); State v. Tieman, 32 Wash. 294 (73 Pac. 375, 98 Am. St. R. 854). Now under our law the father of a bastard is bound to maintain him. Civil Code (1910), § 3027. “At English common law an illegitimate child was treated as nullius filius, and as such incapable of inheriting from either the putative father or the mother, and without heirs, excepting those of his own body.” 7 C. J. 959, § 41. Under our law they can inherit from their mother, and from each other, children of the same mother, in the same manner as if legitimate. If a bastard dies leaving no issue or widow, his mother, brothers, and sisters inherit his estate equally. Civil Code (1910), § 3029. Brothers and sisters of the mother of a bastard or their descendants, or the maternal grandparents of such bastard, under certain circumstances, inherit his estate. § 3030. The trend of the law is toward the relaxation of the harsh rules of the common law on this subject. But we think it is clear that the law fixing the status and rights of bastards does not apply when we come to determine the competency of a bastard to try the slayer of one of his kinsmen. To do so would be to give to a bastard greater rights and greater privileges than a legitimate relative possesses. The reason which' disqualifies the legitimate kinsman from serving upon a jury disqualifies the illegitimate kinsman from sitting. Both lack the impartiality which fits one to sit as a juror. In fact, the ruling in O’Berry v. State, 153 Ga. 644 (113 S. E. 2), controls this case. So we feel bound to hold that the defendant is entitled to a new trial on this ground.

As we grant a new trial, we express no opinion upon the sufficiency of the evidence.

Judgment reversed.

All the Justices concur, except Beclc, P. J., and Gilbert, J., dissenting.