Hardin v. State , 203 Ga. 641 ( 1948 )

1. The evidence authorized the verdict.

2. Though several grounds of the amended motion allege error in the failure of the judge, upon written request, to charge the law of involuntary manslaughter in the commission of a lawful act, predicated upon the theory that the homicide was unintentional, and that it was committed in pursuance of the lawful act of attempting to commit suicide, yet, where neither the evidence nor the defendant's statement showed that the homicide occurred under such circumstances, the question of whether an attempt to commit suicide is lawful or unlawful, is not involved, and the judge did not err in declining to give the requested charges.

(a) Neither was the law of involuntary manslaughter in the commission of a lawful act applicable under any other view of the evidence.

3. (a) The fact that an affidavit to secure a warrant was signed below the jurat would not prevent it from being a valid affidavit.

(b) A warrant sworn out by a wife against her husband charging assault and battery upon her person is not a void warrant, and an arrest made thereunder by an officer is not an illegal arrest.

4. There being no other evidence in the record which would have authorized a charge on the defense of misfortune or accident, it was not error for the trial judge to prefix his charge on this subject with the statement, "The issue of accident, gentlemen, is involved in this case from the defendant's statement."

No. 16168. APRIL 15, 1948. REHEARING DENIED MAY 14, 1948. Jack Hardin was convicted of murder and recommended to mercy, having killed A. B. Bloodworth by shooting him with a shotgun. Bloodworth, the deceased, was a deputy sheriff, and together with Leroy Tucker, a policeman of the City of Summerville, went to the home of the accused to arrest him under a warrant charging assault and battery. They found the accused sitting in the front room of his home. The accused was advised of the warrant, and told "to get ready and let us go up and make some fix about it. The accused was barefooted and got up and made it appear that he was going to get his shoes. He went into another room. The deceased followed him into the room and Tucker, the policeman, went through another room to reach a back door of the room to prevent an escape. Before reaching the back door of the room a shotgun was discharged. When Tucker reached the back door he could not get the door fully open on account of a chair, but could see the deceased and the accused scuffling over the shotgun. After a little delay he got into the room where the scuffle was still going on over the shotgun, struck the accused with a blackjack, and knocked him out. The shotgun was double-barreled, and was loaded and cocked on the barrel that had not been fired. Tucker further testified that just before he struck the accused the accused said, "I am going to kill you both." The deceased was shot in the upper part of his leg near the hip, and died shortly thereafter. It was further testified that forty or fifty minutes after the shooting, or after the accused was placed in jail, he expressed a desire to kill himself, and subsequently did injure himself.

The accused in his statement, in reference to the homicide, said: "I was at home that Sunday evening sitting there barefooted by myself with committing suicide on my mind when Mr. Tucker and this fellow come in. I knew Mr. Tucker, but didn't know this other fellow's name; and they told me to get up and let's go. I knowed that I hadn't done anything more than just wanting to die. I just got tired of living and so I just made up my mind. I went in the other room and got my gun out of the closet and turned around to the divan, put it up on the divan, and I heard somebody holler and a racket, and I looked and Mr. Arthur then he grabbed it, the man that was with him, about six inches from me and grabbed the end of the barrel and jerked it down from here (indicating). I had it up to my heart and we went to scuffling over the gun, and I don't know, somehow or another in the scuffle one of the hammers fell and someways, because I never had an enemy in the world that I knowed of, I know I didn't have nothing against that man. . . Now I tried to even run against a wall up here and everything like that in jail, . . and I begged Mr. Tucker to shoot me and I begged him to give me poison." 1. The evidence authorized the verdict.

2. The first seven grounds and the fifteenth ground of the amended motion are predicated upon the idea that there was evidence to show that the killing of the deceased occurred without any intention on the part of the accused so to do, but in the commission of the act of self-destruction or suicide; and that the court, under proper request, should have charged the jury the law of involuntary manslaughter in the commission of a lawful act without the necessary discretion and caution, under the Code, §§ 26-1009, 26-1010. It was insisted that there is no law in Georgia against suicide, or an attempt to commit suicide, and therefore the act being legal, the judge should have submitted to the jury the question of whether the killing was unintentional but in the commission of a lawful act without the necessary discretion and caution.

Had the evidence disclosed that the accused shot at himself and unintentionally killed another, with some facts to show that in so doing he had not exercised the necessary discretion and caution, the question here presented might have been meritorious, depending upon whether an attempt at suicide under our law is a lawful or unlawful act. For rulings upon this question from other jurisdictions, see annotations in 92 A.L.R. 1180. No determination of this question is necessary here, for the reason that, even under the defendant's statement, it is not claimed that the gun was intentionally discharged with suicidal intent, as he therein said "we went to scuffling over the gun, and I don't know, somehow in the scuffle one of the hammers fell."

Neither under any other view of the evidence nor under the defendant's statement was it error to decline, upon request, to charge the law of involuntary manslaughter in the commission of a lawful act. There is nothing in the record of any circumstances that would tend to show any lack of caution or circumspection. The only defense was that the homicide was an accident, and the judge charged the law of misfortune or accident under the Code, § 26-404. Neither the evidence nor the defendants' statement would have authorized a charge on the principle of law suggested.Lyles v. State, 130 Ga. 294 (9) (60 S.E. 578); Brown v.State, 203 Ga. 218 (46 S.E.2d 160).

3. The other grounds of amended motion assert error in the failure of the trial judge, upon request, to charge certain principles of law predicated upon the illegality of the arrest, in that the warrant under which the officer sought to make an arrest was void. The warrant, which was introduced in evidence, is attacked upon two grounds: (a) that the affidavit upon which the warrant was based was not properly signed; and (b) that the affidavit was signed by Gussie Hardin, the wife of the accused, and charged him with having committed the offense of assault and battery on her. The warrant set forth that "Gussie Hardin makes oath before me that . . (Jack) E. H. Hardin did commit the offense of assault and battery."

(a) As to whether the warrant was properly signed, it shows the following: After the body of the affidavit, the line for the deponent to sign was left blank, but the deponent signed under the jurat, and immediately under the deponent's signature it was witnessed by the justice of the peace. The fact that the affidavit was signed below the jurat would not prevent it from being a valid affidavit. Miller v. Caraker, 9 Ga. App. 255 (2) (71 S.E. 9); Coggins v. State, 57 Ga. App. 710 (2) (196 S.E. 149); 2 C. J. S., 957.

(b) Upon the trial it appeared that Gussie Hardin was the wife of the accused, and it is insisted that the warrant, including the affidavit, charged him with assault and battery upon his wife, which made the warrant void, and therefore the arrest thereunder was illegal. A warrant sworn out by a wife against a husband, which charges assault and battery, rather than wife whipping, is not a void warrant. An assault is an attempt to commit a violent injury on the person of another. Code, § 26-1401. Battery is the unlawful beating of another. § 26-1408. Whipping a wife is to whip, beat, or otherwise cruelly maltreat her. § 26-1410. A valid indictment and a proper prosecution could be maintained under an indictment charging that Jack Hardin did make an assault upon Gussie Hardin, and did unlawfully beat her. Under such a charge, if it appeared upon the trial that Gussie Hardin was the wife of Jack Hardin, she would be competent but not compellable to testify against him if the assault and battery had been committed upon her person. Code, § 38-1604. Should she decline to testify, the case could be made out by other witnesses. If such an indictment further alleged that Gussie Hardin was "his wife," then it would also be a sufficient charge of "wife whipping." Such a charge would be broad enough to cover either assault and battery or wife whipping. Hammond v.State, 28 Ga. App. 680 (1) (113 S.E. 221). Therefore, the warrant not being void for any reason assigned, the various requests to charge, based upon the ground that the arrest was illegal, are without merit.

4. By the fourteenth ground of the amended motion error is assigned upon the following portion of the charge: "The issue of accident, gentlemen, is involved in this case from the defendant's statement." It is asserted that the effect of so charging was a direct instruction that the issue of accident was involved only by the defendant's statement, when as a matter of fact there was other evidence from which the jury could have found that the homicide was accidental under the Code, § 26-404. While it is probably better practice for a judge in charging a jury to refrain from calling attention to the defendant's statement as being his reason for charging any particular defense, yet in the instant case this part of the charge is not subject to the exception taken, as the defendant's statement was the only thing before the jury that would have authorized a charge on the subject of accident. There is nothing in the testimony of Tucker, the policeman, that would have authorized a charge on this subject. It is clear from his testimony that the gun was fired before he saw any scuffling over the gun. Nor would the statements made by the accused, forty minutes after the shooting or after being placed in jail (assuming that they had probative value) have authorized a charge upon the subject of misfortune or accident.

Judgment affirmed. All the Justices concur.