Shaw v. State , 60 Ga. 246 ( 1878 )

Warner, Chief Justice.

The defendant was indicted for the offense of murder and charged with having killed his wife in the county of Baldwin. On the trial of the case, the jury, under the evidence and' charge of the court, found the defendant guilty. A motion was made for a new trial on the several grounds therein set forth, which was overruled by the court, and the defendant excepted.

It appears from the evidence in the record, that the deceased was found dead at the defendant’s house on the morning of the 30th of April, 1877, shot in the head with a pistol ball, had several gashes on the left side of her head, and one of her arms was broken, there was a pine knot there with blood on it. Defendant said his little child about four years old told him that two negroes had killed his wife, and requested the witness, Dr. Harris, to examine her person to see if it had been violated, which it had not, said his pistol had been stolen from the house. Mrs. Moore, mother of deceased, testified that defendant and deceased were at her house the evening before her death and were quarreling, and she saw that defendant was mad, and witness was feeling uneasy about her daughter when she saw the defendant coming to her house the next morning with his child in his arms, when witness ran to him and asked what is the matter. Tie replied : “ Somebody has been there and killed Daisy, that he heard a lumbering at the house, and when he got there found the child standing by its mother, and asked witness what he must do, must he send for the dogs to run the negroes.” "Witness told him to go back to the house. Witness saw fresh scratches on defendant’s face and- mouth as soon as she saw him, seemed to have been done by finger nails, there were spots of blood on defendant’s face, and there was blood on the child. The evening before the defendant had on a white shirt. The state of feeling' between defendant and deceased was never very good. Mrs. Freeny testified that she was at the house of defendant after deceased was killed, saw a white shirt lying on the bed there, with blood on the sleeves, did not know whose shirt.it was. Anderson, a justice of the peace, testified that in 1813 defendant said he had beaten his wife, and thought he had a right to beat her. Rutler, a.witness for the state, testified that he was living with defendant when his wife died, did not see her killed, but heard her hollering. Defendant was in the lot currying ofil his mule, and told witness to get the gear and put it on the mule, which he did, and went to plowing, could see the house plain from where he was plowing, could see anybody in .the door. Witness heard the pistol fire, stopped his mule and looked down towards the house, saw defendant when he went out of the house through the horse-lot, was going pretty pert and came to the new ground where witness was, told him he had killed his damned wife, and if he said anything about it he might look out; told witness to put up the mule, and go for Mr. Moore, which he did ; defendant did not remain long, don’t know where he went then. Witness heard Daisy holler, “ Mike have mercy on me and don’t kill me this time; ” that was not long before the pistol fired. When witness went to the house found deceased lying on the ground near the door-steps, saw no other man, white or black, about the house but the defendant. Witness left defendant at the house when he went to the field, he was then quarreling with deceased, but witness does not know what it was about. Witness kept it a secret about defendant’s killing his wife, did say on the committal trial that the pistol fired in the direction of defendant’s house while defendant was cutting logs in the new.-ground; witness said so because he was scared into it, and moved away because he was afraid to stay in that neighborhood. Witness left defendant at the house, and he did not go to cutting in the new-ground. McComb testified that it was about 180 steps from the house to where the plow was in the field where the witness, Butler, was plowing. Could see a person in the door of the house. Edwards testified that it was 143 steps from the house to theplow. Went to where it was said defendant was cutting, saw no wood cut there. Bonner and Bagby testified that they were acquainted with the general character of the witness, Butler, and from their knowledge of it would believe him on his oath in a court of justice. There was no attempt to impeach the general character of Butler for truth and veracity by any witness, but only from , his contradictory statements before referred to.

In view of the previous rulings of this. court, and the explanatory notes of the presiding judge annexed to the bill of exceptions, there are but four grounds of error to be considered. First, as to the admission of the evidence of Mrs. Moore contained in the record. Second, as to the admission of the evidence of Anderson as hereinbefore set forth. -Third, because the court charged the jury “ that if they believed from the evidence that the defendant was guilty, he was guilty of murder, and' no recommendation from them would be regarded, and that it could not affect the judgment of the court,” the counsel for the defendant insisting it was a proper case under the law for the jury to recommend that the defendant be imprisoned for life. Fourth, because the verdict was contrary to law and the evidence.

1. There was no error in admitting the evidence of Mrs. Moore and that part of it which was specially objected to, to-wit: that the state of feeling between defendant and deceased was never good. The bad feeling that existed between the defendant and his wife was a circumstance going to corroborate the testimony of Butler that they were quarreling when he left the house that morning and went to the field. Persons, especially man and wife, between whom a bad state of feeling existed, that is to say, who did not get along well together, would be more likely to be quarreling than those between, whom good feeling had always existed.

2. There was no error in admitting the evidence of Anderson as to the declaration of the defendant to him in 1873, that he had beaten his wife, and thought he had a right to beat her. Although this declaration of the defendant, made in 1873, was not evidence that he did beat his wife at the time of her death in 1877, still it was a circumstance going to show that he was capable of doing that thing, and would have been more likely to have beaten her with that light-wood knot found there with blood on it, than a man who never had beaten his wife, and who did not claim the right to do so. The theory of the prosecution for the state was that the parties were quarreling, that defendant beat her and broke her arm with the lightwood knot, and finally shot her with his pistol, and that it was when he drew his pistol on her that she exclaimed, “ Mike have mercy on me and don’t kill me this time.” '

3. There waslio error in the charge of the court as to the recommendation of the jury, in view of the evidence in the record. If the evidence of Butler is to be believed, then there was positive and direct evidence of the defendant’s guilt, and he was not convicted solely on circumstantial evidence. It is true that Butler appears to be an ignorant, simple, weak-minded man, and made contradictory statements through fear of the defendant, as stated by him. Two witnesses wbo were acquainted with his general character, swore that they would believe him on his oath in a court of justice, and their testimony was not controverted. A jury of the vicinage before whom he testified believed him, and his testimony was corroborated by the facts testified to by other witnesses. Butler was a competent witness to testify in the case, or he was not. No objection appears to have been made to his competency,but only to his credibility/ the jury believed him, and that being so, the defendant was convicted upon his direct testimony that the defendant said he had killed his damned wife when he came to him in the field where he was plowing. The 4323 section of the Code declares “ that the punishment of murder shall be death, but may be confinement in the penitentiary for life in the following cases: By sentence of the presiding j udge, if the conviction is founded solely on circumstantial testimony, or if the jury trying the traverse shall so recommend. In the former case it is discretionary with the judge; in the latter it is not.” The interpretation given to this section of the Code by this court, is that the punishment of murder when the defendant is convicted of that offense by direct testimony, shall be death, and unless the conviction is founded solely on circumstantial testimony, the jury have no legal right to commute the punishment for that offense by recommending imprisonment for life in the penitentiary. In other words, when the defendant is convicted of murder by direct testimony, the jury cannot commute the punishment of death as prescribed by the law of the state, by any recommendation which they may make. Merritt vs. The State, 52 Ga. Rep., 82 ; Guilford vs. The State, 24 Ga. Rep., 322 ; McGinnis vs. The State, 31 Ga. Rep., 263 ; Long vs. The State, 38 Ga. Rep., 492 ; Peterson vs. The State, 47 Ga. Rep., 529. This cannot now be considered an open question in the courts of this state, but if it was, I should hold that the general assembly never intended by the words of the section of the Code before cited, that the offense of murder, that great crime, when proved to have been committed by direct testimony, should be punished otherwise than with death. The exception made by the statute is when the conviction is founded solely on circumstantial testimony. If it was intended that the punishment of murder when proved by direct testimony should depend on the recommendation of the jury, why did not the general assembly declare that the punishment of murder shall be death, unless the jury trying the traverse shall otherwise recommend ? "Why have said anything about the conviction being founded solely on circumstantial testimony ? But the general assembly, with a full knowledge of the interpretation which had been given to the 4323d section of the Code by this court, passed the act of 25th of February, 1875, by which it is declared that, “ if in any capital case of homicide the jury shall make any recommendation where not am thorized by law to make a recommendation of imprisonment for life, the verdict shall be construed as if made without any recommendation.” The general assembly in dealing with - the question, expressed no dissatisfaction with the interpretation given by this court of the 4323d section of the Code, but, on the contrary, by implication at least, approved it. See acts of 1875, page 106.

4. If the jury believed the witnesses for the state (and that was a question for them), then there was sufficient evidence to sustain their verdict, and it was not contrary to law. There was no error in overruling the defendant’s motion for a new trial on the statement of facts contained in the record.

Let the judgment of the court below be affirmed.