Summerlin v. State , 25 Ga. App. 568 ( 1920 )

Luke, J.,

dissenting. 1. I do not agree with the majority view of the court as announced in the first division of the decision. The ground there referred to, just as presented in the motion and argued to this court, is as follows: “ Because the court refused to allow the witness W. E. Jackson, sheriff of Clarke county, while on the stand as a witness for the State, to answer the following question propounded to him by movant’s counsel, to wit: Q. ‘ When and how did he (Dr. M. T. Summerlin) come into your custody as sheriff and jailer of this county?’ Movant then and there insisted and stated to the court that if the witness was permitted to answer said question, he would testify that, after the presentment was found against the defendant M. T. Summerlin, he, M. T. Summerlin, presented himself to W. E. Jackson, as sheriff of said county, and voluntarily surrendered himself to W. E. Jackson as sheriff of said county, after said presentment was found against him. The judge, being then and there informed as to what the answer of the witness would be if he had been allowed to testify in response to said question, and having refused to ■permit the witness to answer said question, committed error, in that the State had endeavored to prove by the witness Jackson that the defendant M. T. Summerlin had not been in Athens for some time, and that the defendant had been away for some time, for the purpose of showing flight, as evidence of his conscious guilt; and the State likewise introduced testimony from various other witnesses seeking to show flight, as evidence of his conscious guilt; the defendant was entitled to establish, as an explanation and in. rebuttal to said testimony, that he voluntarily surrendered himself to the sheriff of said county when he learned that said presentment had been found and returned into court against him. The testimony introduced by the State upon the subject of flight is as follows: Epson Harper testified for the State as to the flight of the defendant, as follows: ‘I have charge of the Southern Mutual Building.’ Q. ‘Since the first day of March I will ask you whether or not Dr. Summerlin has been there?’ (Southern Mutual Building.) A. ‘I don’t know, sir. I couldn’t tell you, to save my life, what date it was.’ Q. ‘You remember the day he was said to have fainted on the elevator?’ A. ‘I remember the.day, but not the date.’ Q. ‘Have you seen him there since that time?’ A. ‘I don’t think I have. I am not sure. I have talked to him over the telephone. ’ Chief of police Henry Beussee testified for the State as to flight of the defendant, as follows: Q. ‘I mean from the first day of March on through April?’ A. ‘I don’t remember seeing him.’ Q. ‘Didn’t see him in town during that time?’ A. ‘I don’t remember seeing him after the day he was lying on the floor sick.’ Dr. A. C. Holliday testified for the State as to flight of the defendant, 'as follows: Q. ‘What day of the month was it when you had that conversation with him?’ A. ‘That was the first day of March this year.’’ Q. ‘Has Dr. Summerlin been back to his office, of your knowledge, since that time?’ A ‘No, sir.’ Q. ‘Has he been in Athens -since that time, if you know it?’ A. ‘I don’t know. I haven’t seen him, — not of my knowledge.’ Walter E. Jackson, sheriff of Clarke county, testified as a witness for the State, as to the flight of the defendant (after the aforesaid witness had testified), as follows: Q. ‘You know whether he has been in Athens since the 20th day of February,— I mean the 1st day of March?’ A. ‘First day of March?’ Q. ‘Yes.’ A. ‘No, sir. I don’t know what time he left, but he has been away some time.'’ Movant then and there excepted, and here and now excepts and assigns as error the ruling of the court in refusing to permit the defendant to prove by the witness W. E. Jackson that he (M. T. Summerlin) voluntarily returned to Athens, Georgia, and surrendered to the sheriff of Clarke county, Georgia, W. E. Jackson, so soon as he was aware of said presentment-having been returned against him, as an explanation and in rebuttal of said evidence of his having fled from the crime as charged against him. ”

This court said in Dixon v. State, 12 Ga. App. 17 (3) (76 S. E. 794) : “ While, primarily, testimony that one accused of crime voluntarily submitted himself to arrest is inadmissible, 'as being of the same nature as a self-serving declaration, still, where testimony has been introduced on the part of the prosecution, tending to show flight, as evidence of conscious guilt, it is competent for the accused to rebut it by evidence showing that, so far from attempting to escape, he notified the sheriff of his desire to submit himself to custody.” Aside from this decision as a precedent, it is manifestly unfair, in my opinion, for the State to be permitted to introduce evidence of flight and reap its advantages without allowing the defendant to rebut it. Especially in this instance is it unfair, because the very witness that was testifying and giving evidence tending to show flight was, upon cross-examination, instructed by the court not to answer a question from the defendant’s counsel the answer to which, the court was advised, would tend to rebut the evidence of conscious guilt by reason of a circumstantial- proof of flight. The court disarmed the defendant of a weapon which in all fairness he had a right to use for the purpose of explaining his conduct.

In my opinion the cases of Central of Georgia Ry. Co. v. Jaques, and Stead v. Cruse, cited in the decision, are not controlling authority as to the ground of the motion for a new trial here discussed. In my opinion it was not necessary in this particular instance for the movant to show in his motion for a new trial upon what ground the court refused to allow him to ask the witness, on cross-examination, the question, and elicit the answer which his motion shows he would have gotten. In addition to what I have said I think the defendant was entitled to ask this question upon cross-examination, under the broad right to make a thorough and sifting examination.

2, 3. I do not agree with the rulings announced in the third and fourth divisions of the decision. I think the requests to charge were pertinent, and, from a most careful examination of the charge of the court as a whole, I do not think the requests were in substance given. It was necessary, in my opinion, for the court to deal specifically and fully with the questions raised by the timely written requests.

8. In addition to what I have said, I do not think that the evidence in this case supported the verdict. The defendant was convicted of the offense of involuntary manslaughter in the commission of an unlawful act. The very best evidence and the only evidence which connected the defendant with the commission of the crime yras the dying declarations of the deceased which' were testified to by one of the doctors who was with her shortly before her death. Her death was occasioned by an abortion. Her dying declaration was that Dr. Summerlin, the defendant in this case, was the father of the child, and that Dr. Waters produced the abortion in Dr. Summerlin’s office. The deceased, in her dying declaration, did not say that Dr. Summerlin, this defendant, advised the abortion or aided in it, or had anything to do with it. There was no other evidence which connected this defendant with the crime charged. This court said, in Butler v. State, 11 Ga. App. 815 (76 S. E. 368) : “Mere proof of presence by the accused, when the criminal act was committed by another, and of subsequent flight, does not, in the absence of evidence showing that the accused advised or abetted the commission of the crime, authorize his conviction.” The Supreme Court said, in Futch v. State, 137 Ga. 76 (3a) (72 S. E. 911) : “Mere presence and participation in the general transaction in which a homicide is committed is not conclusive evidence of consent and concurrence in the perpetration of a crime by a defendant sought to be held responsible for the homicide as aiding and abetting the actual perpetrator, unless such defendant participated in the felonious design of the person killing.” In the case which we have here for review there is not one word of evidence which connects this defendant with the killing of the deceased. The nearest approach we have to it is that another person in the office of this defendant committed the crime, with not one word of evidence that the defendant knew that the crime was being committed, or counselled it or advised it. For this reason I do not think the verdict was authorized by the evidence.