Hill v. State , 64 Ga. 453 ( 1880 )

Jackson, Justice.

The defendant was indicted for the murder of John R. Simmons in the city of Atlanta on the 29th day of January, 1879 ; he was found guilty, and made a motion for a new trial; the presiding judge overruled the motion on all the grounds therein stated, and error is assigned in this court on each of these grounds.

The question before us is, did the presiding judge so err on- any of these grounds as to authorize this court to set aside the verdict of the jury and ordéra new trial, notwithstanding the approval by the judge who tried the case of the verdict rendered by the jury ? This is a court of law. The questions made by this record -are pure questions of law. With the- policy of the law we have nothing to do. It is our duty to enforce it as we find it written. Sympathy for the. dead, slain in the flower of youth, and sentiment for the living, who slew him under circumstances which appeal to all hearts for kindness and consideration, must both be repressed, and impartial justice according to law must reign here, and reign alone.

Anxious to guard every right of the defendant on the one hand, and to vindicate the serene and sober majesty of law on the other, we have scrutinized closely every line of this voluminous record of more than five hundred pages, and have examined the entire case with that care and deliberation which its importance to the defendant and to society demands. The conclusions reached are the result of much time devoted to the case and much anxiety to discover truth and to apply the principles of law to the truth disclosed by the evidence set out in the record. Questions in dispute in regard to the law are to be found in the motion for a new trial, and to the consideration of these questions we address ourselves.

When analyzed, the grounds taken in the motion for a new trial may be classified under four heads: first, alleged errors of the court below in respect to the jury; secondly, in the charge to the jury ; thirdly, in regard to newly discovered testimony ; and fourthly, in upholding the verdict as authorized by the law and the evidence.

1. In respect to errors of the court in ovei’ruling the motion for a new trial on the several grounds touching the conduct of the jury, it is assigned as error first, that a new trial should have been granted because Myers, one of the jury, had formed and expressed an opinion on the guilt of the defendant prior to the trial, and was thereby disqualified.

This assignment of error rests on the following aflidavit of J. B. Red wine, Esq.: “ . . . I asked him where he was going. He answered he was summoned as a juror in the Hill case to be called that day, but added that they wouldn’t take him, or that he knew he wouldn’t serve, as he had already made up his mind as to what he would do. I then asked him how his mind was made up, for or against Hill; he refused to answer. I then put the substance of the statutory questions, and he said he could not answer all of them rightly. I inferred he was prejudiced one way or the other. I was engaged at the time and do not recollect distinctly all that occurred after this. I know I asked him if he knew John R, Simmons and Sam. Hill. I know he replied he knew one and not the other ; which one he knew I cannot distinctly recollect, but the impression on my mind now is, and has since been, that he knew Simmons and not Hill. From his manner and from what he said (of course I cannot recollect all) I received the impression that he was prejudiced against Hill. William M. Turner, my office boy, was present at the time.”

If this affidavit had not been explained, it would be too vague and uncertain to predicate a reversal of the judgment upon it; but it is answered by the juror in a deposition made by him, who swears positively that the conversation had with Red wine was to induce the impression that he had made up his mind so as to get out the report and enable him to keep off the jury, and further, that he had made up no opinion whatever but was perfectly impartial. Besides, it further appears from the record that this juror was one of the last two to concur in the verdict, and has made a deposition in behalf of defendant on which newly discovered testimony is predicated; 59 Ga., 308, covers the point completely.

(a. i It is also insisted that Rich, one of the jurors, conversed with his wife apart from the other jurors pending the trial; but that conversation had no reference at all to the case as shown by the depositions of Rich, the juror, and of the bailiffs in charge of the j ury. Moreover, it seems that counsel for the defendant assented to the permission given by the court that such conversation should be had, and so the judge distinctly certifies. 45 Ga., 282 ; 47 Ib., 598.

(b). Further, it is objected that since the verdict it has been ascertained that Rich is an unnaturalized foreigner. There is no doubt that Rich was born-in Hungary. Whether ever naturalized or not appears somewhat doubtful from the record. The onus is on the defendant to show that'he is not a citizen, especially after verdict. Rich thought that he was naturalized in Albany, and took an oath there on which he voted some years ago. He has been in the United States ever since he was thirteen years of age, and his father ever since 1868. .He may or may not have been naturalized; possibly he was. Revised Code U. S., §2167.

Be that as it may, the objection comes too late. In Cortz vs. The State, 19 Ga., 628, a case of homicide, this principle was ruled, and also in Epps vs. The State, 19 Ga., 102. It is a challenge propter defectum, and must be taken before verdict. See also 40 Ga., 253; 3d Blacks. Com., 361; 20 Ga., 752; 28 Ga, 439; 33 Ga., 403; 39 Ga., 118; 47 Ga., 538; 53 Ga., 428; 57 Ga., 329; 60 Ga., 55, cited by defendant in error.

(c.) It is also objected that Randall, one of the jurors, when that body was polled, did not signify his assent to the verdict as required by law. Randall replied to the question, “is that your verdict?” “I agreed to it,” This answer was objected to, and the court again propounded it, when he said, “I agreed to it, I suppose.” The court said that the juror was not asked for a supposition, but for what the juror knows. “Is this your verdict or is it not?” The answer was, “I suppose it is, if that is a proper answer to your question.” “You are an intelligent man, Mr. Randall; please answer me?” “Yes, sir, I agreed to it,” was the answer. And thereupon the verdict was received over defendant’s objection.

The practice is not uniform in the United States on poll- " ing the jury. In some states it is not allowed ; in others it rests in the discretion of the judge, and at common law it seems to have existed in another form — 2 Hale’s P. C., 299; Bishop’s Crim. Pro., 830; 1 Chitty, 635. In this state the •right is recognized, the object being to ascertain before the public and prisoner whether the verdict agreed on in the jury room is still the unanimous verdict of the jury — 31 Ga., 641-661; Campbell & Jones vs. Murray, August 7, 1878, not yet reported. The question is, did the juror still assent thereto? From the narrative above given, the presiding judge held that he did, and we think that, whilst the juror hesitated, yet he then and there assented and recognized the verdict as his.

The affidavit afterwards taken by him cannot be considered — Bishop’s Crim. Pro., 830. He cannot impeach the verdict after its record — 17 Ga., 146; 9 Ga., 121; 49 Ga., 622; 59 Ga., 309.

Indeed, the first answer of the juror, if not sufficient, of itself to show present assent, without any other questions or answers, was made plain by the last “yes, sir, I agreed to it;” as much as to say, “yes, sir, it is my verdict, for I agreed to it.” The ease in 6 Wisconsin, cited by plaintiff in error, is much stronger than this. It shows almost conclusively dissent to the verdict.

2. We come now to consider the errors assigned upon the charge and refusals to charge.

The portions of the charge excepted to seem to have been cut in segments from the body of the charge. Without stopping, however, to see whether the whole segment embodies more than one point, and whether in that view any of them can be reviewed under the rulings of this court in similar cases if strictly applied, let us analyze them to see what real points are relied on, as well as we may, from the wholesale manner in which they are presented.

The main point made, as it strikes us, is that the court did not fairly submit to the jury section 4,334 of the Code, which enacts that “all other instances which stand on the same footing' of reason and justice as those enumerated, shall be justifiable homicide.” Defendant insists that the court should have turned the jury loose upon this section, and should have instructed them that, “where a man kills another for having criminal intercourse with his wife, it is for the jury to decide whether the killing stands upon the same grounds of reason and justice as those enumerated in the Code, and if they so believe, it would be a case of justifiable homicide.” The judge declined to give this request, but instructed the jury that “there is no principle of reason or justice enumerated in the Code by which, after an injury shall have been consummated, no matter how great and no matter how grievous that injury may be, the party injured would be justified in taking vengeance into his own hards and in deliberately seeking out the wrong doer and slaying him;” that “the existence of such temptations, provocations or passions, might be looked to for ascertaining motives, or to inquire whether the killing was intentional or malicious, but would afford no justification for the killing if perpetrated for the mere purpose of vengeance, punishment, or vindication;” that “one of the principles of reason and justice on which a homicide can be justified is this: that such homicide was committed as a defense against an injury, to prevent an injury of the serious kind described,-or to stay its progress.”

So that the issue is plainly presented, whether homicide to be justifiable must be in defense of wrong or to prevent its consummation — in the language of the judge, “to stay its progress'” — and whether if committed for a past wrong, distant enougb for prisoner to cool — even adultery with the slayer’s wife — the killing is justifiable in law.

The question turns on our Code. What are the previous sections referred to in section 4334? They are sections 4330, 4331, 4332 and 4333; and so far as at all applicable here they read as follows in giving the instances of justifiable homicide: “ In self-defense, or in defense of habitation, person or property, against one who manifestly intends, or endeavors, by violence or surprise, to commit a felony on either; or against any persons who manifestly intend and endeavor, in a riotous and tumultuons manner, to enter the habitation of another for the purpose of assaulting or offering personal violence to any person dwelling or being therein. A bare fear of any of those offenses, to prevent which the homicide is alleged to have been committed, shall not be sufficient to justify the killing. It must appear that the circumstances were sufficient to excite the fears of a reasonable man, and that the party killing really acted under the influence of those fears and not in a spirit of revenge. If, after persuasion, remonstrance, or other gentle measures used, a forcible attack and invasion on the property or habitation of another cannot be prevented, it shall be justifiable homicide to kill the person so forcibly attacking and invading the property or habitation of another; but it must appear that such killing was absolutely necessary to prevent such attack and invasion, and that a serious injury was intended, or might accrue to the person, property or family of the person killing. If a person kill another in his defense, it must appear that the danger was so urgent and pressing at the time of the killing, that in order to save his own life, the killing of the other was absolutely necessary; and it must appear, also, that the person killed was the assailant, or that the slayer had really and in good faith endeavored to decline any further struggle before the mortal blow was given.”

These are the enumerated instances where one may kill another and be justified in doing so; and the legal question is, does the principle of defense, defense of some sort, enter into them all? and can any case stand on the same footing of reason and justice as these enumerated cases do, unless defense of some sort — the prevention of some impending and pressing wrong — enters as an element therein ? Judge Hillyer charged fhat defense against some urgent and pressing danger must have operated on the mind of the defendant, or he was not justifiable; or, to put the question on the case at bar, he charged, in effect, that defendant must have killed Simmons to prevent him from attempting or consummating an impending adultery with his wife, and not to avenge a past adultery with her, in order to justify the killing. Mark, the question now is not the reduction of the crime from murder to manslaughter, but the absolute and unconditional justification of the killing; in other words, that such killing is no offense at all.

It will be seen by merely glancing at the quotations from the Code of the enumerated cases of justifiable homicide, that each of them contemplates defense against immediate and pressing danger. It is defense of self; it is defense of habitation, property or person; it is defense against one who manifestly intends or endeavors, by violence or surprise, to commit a felony on either ; it is defense against a mob violently and riotously intending and endeavoring to enter one’s house to assault or wrong some person therein ; it is defense against real, imminent, impending danger ; a mere fear of any offense, to prevent which the killing is done, shall not justify it; the circumstances must be such as to excite reasonable fears in a rational mind, and the person killing must act under the influence of such fears, and not in a spirit of revenge; not only must it be in defense, but it must be absolutely necessary to prevent the attack or invasion ; and even in self-defense, the strongest of all defenses, the danger must be so urgent and pressing at the time of the killing, that in order to save one’s own life, the killing was absolutely necessary.

So that our law broadly separates the act of deliberately seeking another and slaying him for past wrongs, however heinous they may be, from the act of slaying another to prevent his doing a present wrong, or future wrong imminently impending. Whenever done to avenge the past, it is not justifiable; when done under pressing necessity to defend life, or limb, or wife, or child, or habitation, or property, against felonious attack on either, it is justifiable.

Therefore, our law, in common with the laws of all civilized states with which we are acquainted, forbids vengeance for the past, but permits defense against the present and the immediate and pressing future; and therefore the presiding judge did not err in the refusal of the request to charge, or in the charge given on this point.

(a) . And this, we think, disposes of the eight first grounds of this motion. Some criticism is made in regard to the allnsion in the charge to the pardoning power and where it is lodged, to the caution of the judge to the jury not to take law from counsel in the teeth of the exposition given by the court, to the allusion to man and wife living in virtue and peace, to the argumentative tendency of the charge, and to other such matters ; but in the eight grounds reviewed, we see no substantial errors in matters of that sort, or in other respects.

In one of them, exception is taken to the judge’s exposition of the law of manslarrghter as contradistinguished from murder, and the application of that law to this case. The court told the jury, substantially, that if Iiill came upon Simmons suddenly and without premeditation, and his passions were aroused thereby, and in his (Hill’s) belief Simmons had a pistol, and enraged on seeing the adulterer for the first time, after his knowledge of his guilt, he shot him and billed him, then the offense would not be murder, but manslaughter; but if the attack was premeditated and deliberate, and not upon a sudden burst of uncontrollable passion, then it would be murder. Such we understand to be the law; and as Hill’s exclamation when he shot implied that he thought Simmons had a pistol, the allusion to the prisoner’s belief that he did have one is not -without evidence to support it.

(b) . In respect to the comparative weight of the evidence and the statement, the charge is identical with that given in the case of Cox vs. The State, decided last term, and is controlled thereby. So the ninth ground is not good.

(o). Nor do we think that the charge is partial,- or argumentative, or that it intimated any opinion on the facts. It is forcible and strong, clear and to the point; it gave the law of the case to the jury, but only the law. 'More it did not do; less it ought not to have done. The tenth ground is not, therefore, sound.

(<#). The constitution of 1877 does not alter the law in regard to the right of the jury to be the judges of it independently of the instructions'of the court thereon. It simply re-enacts, in identical language, the provisions of the Code thereon. It emphasizes it by inserting it in the constitution; but it put it there subject to the construction which had been put on'the same words in the Code. Had the convention of 1877 intended to change the construction of those words, it would have altered them. On the contrary, as we understand it, it expressly declined to do so.

Therefore the court was righc to refuse the request embodied in the twelfth ground, and the eleventh was passed upon with the first eight grounds.

3. So we come to the newly discovered testimony, or the grounds set out in the amendment to the motion. That in regard to the competency of Rich as a juror has been already considered. That of Myers in respect to the letter written to Mrs. Hill and its authorship by Simmons, is merely cumulative, and would not probably change the verdict if the law is administered, because, if Simmons did write it, it was nearly two weeks prior to the killing, and did not, and could not, take the case without the rule that to reduce the homicide from murder to manslaughter, there must not be time for passion to cool and reason to resume her sway over hot anger and sudden fury.

(a.) The counsel on the trial before the jury differed in respect to putting in evidence of insanity, and decided not to do so. The plea, if it had been put in, would not have been supported by the evidence. If the defendant rested under a delusion in regard to his wife’s virtue, and therefore slew the deceased, it would not protect him in the commission of the crime — 31 Ga., 479.

If he be now a lunatic, he cannot be hurt. He ought to be, and will be, removed from the penitentiary to the asylum. The same lunacy might induce him to slay others for a like offense with that for which Simmons lies in. his grave. Confinement somewhere may be essential to prevent the repetition of the deed on another.

4. Is this verdict supported by the evidence and is the defendant guilty of murder? The evidence shows deliberate revenge. The wrong was a grievous wrong, but the vengeance therefor was conned over and calculated for weeks. The prisoner’s statement alone, stripped of all inferiority to evidence, and admitted to be the whole truth, shows a case of deliberate murder. Hence the last refuge of counsel, the change of base, the desire to set up the plea of insanity on a new hearing.

But what are the facts? The wife of Hill was introduced to Simmons as a lewd woman, and in company with lewd women; as a single woman and not a married woman; as Miss Etheridge and not Mrs. Hill. She was introduced without his seeking her. One of her companions in sin sent for him. He took her for a woman of the town, and so he had cause to believe her to be from her company and conduct. The record shows that she had been enticed from allegiance to her husband — if indeed her own disposition needed seductive influences to lead her astray — weeks, if not months, before Simmons knew her. He met her thereafter at balls where virtuous women did not go, and at places to name which chastity would blush. He did discover that she was a married woman and was Hill’s wife, but at what point of time during their intimacy the record does not show. When he made that discovery, he should have stopped that wild career of sin, which he seems to have entered under the lead of married men; but he did not. On the 8th of December, 1878, in company with another man and with Simmons, she left home, and her husband, about whose affection for her and anguish at her departure there can be no doubt, recovered her within three days through the instrumentality of a lewd woman and her knowledge that Simmons knew her lodging, and who seems to have induced her return to Hill.

Her husband condoned the past guilt of his wife, as he had the right to do, and restored her to his home. He moved her to the country, eight miles from Atlanta, and about tbe 16th of January, Simmons was seen to pass and repass once that country place in a buggy, and about the same time a note was received by her said to be written by him, but in a disguised hand, and Hill received a letter from her begging him to come to her, but without stating any particular reason. Thenceforward Hill seems to have deliberately intended to wipe out his wrongs in the blood of Simmons, and thirteen days thereafter, on the 29th of January, just after Simmons had been shaved in the barber’s shop of the National Hotel, and was at the counter of the bar-room, about to settle for a drink he had taken, Hill stepped up behind him, and with some profane or vulgar exclamation prefixed to the remark, “shoot, you’ve got it to do,” as Simmons turned to see what or who it was, shot him through the face and head, and about the last exclamation of the dying man was, “he shot me for nothing !”

The dead-man had no chance for his life. Hill may have thought Simmons was armed and from his exclamation it seems that he did think so; but Simmons had no weapon drawn and was allowed no time to draw one if he had it. If this be not murder what can make a case of murder, wherever in the past there has been great provocation ? Hill in his statement admits the killing for revenge and puts his defense there. He says that he would have killed another paramour of his wife, but that he was not so guilty as Simmons. The legal question, and with that question only it is our duty to deal, is narrowed, therefore, to this: Is a man justifiable in deliberately hunting down another who committed adultery with his wife nearly two months before the homicide, and thirteen days before rode past the house where she was and wrote to her about the same time, and in deliberately shooting him down without a moment’s time for defense, when he knew at the time of the killing that the wife had left his home and that others were guilty also, though not so much so in his opinion ? or do these facts reduce the homicide to voluntary manslaughter ?

There cannot be found a case in any law book with which we are familiar that approximates such a conclusion. It is only where the danger is so imminent and immediate that one cannot appeal to the law for help, that in civilized society he can help himself.

It is true that where virtuous wives or sisters or daughters are insulted, jurors are slow to convict the avenger of the affront, though time enough had elapsed to put passion under the sway of reason ; but even in such cases no court has ever held or can hold, without becoming instead of expounders makers of the law, that such' verdicts are in accordance with the law. The Augusta case of shooting at another, in our own reports, is wholly unlike this. There no breath of suspicion soiled the purity of the wife. .The very evening before, the affront was given ; and the insulter, the very next morning at breakfast, had the audacity to take his seat at the same table and immediately in front of the insulted woman and the guardian of her virtue ; and it was in that case that this court ruled that the jury might consider whether it stood on the same ground of reason as the cases enumerated in the Code. The wife was not only pure, but present: passion, just kindled the night before, flamed up beyond control at the sight of the aggressor, who was not hunted down to be slain, but who obtruded his presence before those he had wronged.

In this case Mrs. Hill was safe eight; miles in the country ; and while thus safe, Simmons was sought, was found, and was" slain without a moment’s warning.

We forbear to detail further the facts of this case made by this record. We would not unveil the folly and frailty of the unhappy woman, whose conduct has robbed her husband of home and of liberty, and one of her paramours of life ; nor would we expose the haunts of vice uncovered by this evidence, and the men who frequent them. We add but a single remark: If men will take the law into their own hands, become- themselves the judges of their own cases, and their own sheriff to execute the sentence they themselves pronounce, they must be certain that they judge the case according to law and execute the sentence which that law pronounces, or they must suffer the consequences of their mistake of the law. Homicide for revenge of past offenses, however heinous, deliberately planned and premeditated, and carried into execution after reason has had time to assert her supremacy over passion, is murder; and he who judges that in his own case it is not, and executes sentence in such a casé on a fellow-being, must suffer the penalty which the law imposes upon the murderer.

Let the judgment be affirmed.