Waycaster v. State , 136 Ga. 95 ( 1911 )

Holden, J.

(After stating the foregoing facts.)

1. In the first ground of the amendment to the motion for a new trial, complaint is made that the court erred in admitting evidence delivered by the sheriff to tbmeffect that the defendant stated to him in jail, on the day defendant was arrested, that he, the defendant, killed the deceased. It is contended that the defendant’s statements to the sheriff were not admissible, because they were not voluntarily made without being induced by another, nor free from the slightest hope of benefit or the remotest fear of injury; which objection to their introduction was urged by the defendant upon the trial. Defendant specifically contends that the deputy sheriff, a short time previous to the confession proved, had told the- defendant “that he [meaning the officers] already had the proof that defendant had killed the deceased, • and that it would' therefore be better for the defendant to admit the killing, as he could prove that it was done in self-defense,” and that this inducement, held out by the deputy sheriff was on the same day and a short time before the confession was made to the sheriff. In the 4th ground of the amendment to the motion, the defendant contends that the court erred in admitting the sheriff’s evidence to prove a confession made to him by the defendant, because, on a preliminary hearing before the court in the absence of the jury, the deputy sheriff testified that he arrested the defendant, and that before he placed him in jail the witness told the defendant he had sufficient evidence to prove that he killed the deceased, and it would be better for him to go ahead and confess it; that he told defendant he understood the deceased had followed him with rocfrs and had run him with a knife, and it would be better for him to confess. Defendant told the witness he wanted- to talk to Broach (the sheriff), and made no confession to the witness. The sheriff testified that the deputy sheriff was not present when the defendant confessed to the witness; that the confession was freely and voluntarily made without any threat or inducement; that the defendant said he wanted to see Sherman Thomas, and the witness brought Thomas to the defendant, and, after they talked together, the defendant then said he killed the deceased. “He said he killed the deceased to save his own life, that he was- compelled to do it.” The conversation between the accused and Johnson, the deputy sheriff, which counsel for the accused contends rendered the testimony'of Broach, the sheriff, inadmissible, occurred soon after Johnson arrested the accused and before he was placed in jail. After the accused and Johnson had this conversation and before the accused made the statements to the sheriff, the accused was placed in jail, and the sheriff brought the witness Thomas to the accused, and the two latter had a conversation. If the defendant had made any confession, or incriminating statement, at the time Johnson told the defendant, among other things, “it would be better for him to go ahead and confess” the killing, such incriminating statement, or confession, would not have been admissible; but sufficient time elapsed between the time of the conversation between the accused and Johnson, and the time when the accused made to Broach the statement to -which objection was made, to make the testimony of Broach regarding the statement made to him by the accused prima facie admissible. Under the circumstances, it was a question for the jury whether or not the testimony of Broach should be considered by them. If the jury believed the defendant made to the sheriff any confession, or incriminating statement, but that on account of the previous, conversation between the defendant and Johnson, or for any other reason, it was not “made voluntarily, without being induced by another, by the slightest hope of benefit or the. remotest fear of injury,” it would be the duty of the jury to disregard- the testimony; otherwise, it would be their duty to consider it. Dixon v. State, 116 Ga. 186 (3) (42 S. E. 357); Pines v. State, 21 Ga. 227. The question we are dealing with is one. concerning the admission of testimony of Broach, regarding statements made to him by the defendant, and is not one involving a charge regarding such statements.

2. Another ground of the amendment to the motion for a new trial is as follows: “Defendant says that the verdict should be set aside and a new trial granted, because the court admitted the evidence of the .solicitor-general, Hon. J. W. Bale, and others, to impeach witness Thomas, over the objection of defendant, which objection was upon the ground that the witness Thomas did not deny the facts testified to by the solicitor-general and other witnesses on the subject of impeachment for the purpose of impeaching Thomas by proof of contradictory statements previously made material to his testimony.” Thomas, a witness in behalf of the defendant, testified: “I don’t remember that I told the solicitor-general that when Clarence got away from ‘Bull Dick’ at the negro house he just said, ‘Wait, God damn you, I’ll get you/ and went in the direction of his house.” J. W. Bale, the solicitor-general of the Borne circuit, a witness in behalf of the State, testified that the witness did make such statement.to him. The testimony of the solicitor-general was not inadmissible on the ground that “the witness Thomas did not deny the facts testified to by the solicitor-general.” If a witness makes previous statements contradictory to the statements made while testifying, he can not prevent proof of them by testifying he does not remember whether or not he made such previous contradictory statements. Sealy v. State, 1 Ga. 213 (44 Am. D. 641). The ruling above made is also applicable to the testimony of other witnesses who testified to previous contradictory statements made by the witness Thomas.

3. Complaint is made that the court erred in the following-charge: “If you should believe from the evidence the witness Thomas made a statement relative to his testimony in the case, material to the issue, at some time prior when he was drunk, and which statement is contradictory to his testimony as delivered in this trial, and if you should believe from his evidence he was so drunk as not to know what was transpiring, or to realize or to understand what he was saying or doing, at such former time, then I charge you that any statement made at such prior time by him, if it was made at all, while he was in such condition, would not be sufficient to impeach his testimony as' delivered by him as a witness in this ease, nor would you consider any statement he might have made under such circumstances, as against the defendant on trial, in arriving at your verdict. On the other hand, if you should believe from the evidence he was not drunk, but that he understood what he was saying and doing, and you should believe from the evidence that at such prior time he made a statement, relevant to his testimony and to the case, material to the issue, in contradiction of his testimony as delivered in this trial, you should disregard his testimony unless his testimony as delivered in this trial is corroborated by other credible evidence or is corroborated by the proven circumstances in the case.” One ground on which complaint is made against this charge is: “Because defendant contends that the court, -in the expression, ‘you should disregard his testimony unless his testimony as delivered in this trial is corroborated by other credible evidence or is corroborated by the proven circumstances in the ease/ erred, in that the language used and excepted to took from the jury a question of fact that under the law was to be determined by the jury, and instructed the jury as a matter of law to disregard said Thomas’s testimony unless corroborated by other credible evidence or proven-circumstances.” The charge was subject to the criticism made thereon, and constitutes error requiring a new trial. The credibility of witnesses is a question for the jury. If a jury believes that a witness has made statements prior to the time he is testifying, in contradiction to statements made in his testimony, the jury may Believe the statements made while testifying to be true, and that the previous contradictory statements made while not under oath are untrue. Civil Code (1910), § 5884, is as follows: “When a witness is successfully contradicted as to a material matter, his credit as to other matters is for the jury. But if a witness swears wilfully and knowingly false, his testimony ought to be disregarded entirely, unless corroborated by circumstances, or other unimpeached evidence. It is for the jury to determine the credit to be given his testimony where impeached for general bad character or for contradictory statements out of court.” This section is omitted from the Penal Code, but the rule of law there announced is applicable to the testimony of witnesses in criminal cases as well as in the trial of civil cases. There are several ways in which a witness may be impeached. A witness is impeached when the jury is convinced by proof upon the trial that he is unworthy of credit. Whether or not a witness has been impeached is a question for the jury. The court is not authorized to instruct the jury that if they believe a witness has made previous statements contradicting his testimony delivered on the trial, such testimony should be disregarded unless it “is corroborated by other credible evidence, or is corroborated by the proven circumstances in the case.” Even if the jury believe that a witness has made previous statements contradictory of statements made in his testimony, the jury may believe the latter statements to be true, and this the jury is authorized to do even though such statements are not in any way corroborated.

Judgment reversed.

Fish, G. J., absent. The other Justices concur.