North v. State , 69 Ga. App. 836 ( 1943 )

1. It is well settled that where the evidence is sufficient to raise a doubt, however slight, as to whether the case is one of murder or manslaughter, it is the duty of the court to instruct the jury as to the law applicable to murder and manslaughter, so that the jury may determine the grade of homicide.

2. Newly discovered evidence is not favored. A grant of a motion for a new trial, based on newly discovered evidence, is always addressed to the sound discretion of the judge. His refusal of a new trial thereon will not be disturbed, unless there is a manifest abuse of discretion.

DECIDED SEPTEMBER 8, 1943. The homicide occurred during a religious gathering at a church. The defendant, Marvin (or Goodwin) North, and John Crowder, the deceased, had been on and around the church grounds during the afternoon and until about dark, when the homicide occurred. Shortly before the homicide Crowder was sitting in an automobile with Coon Moore. There was a sharp misting rain. The defendant and his brother came from the church and walked to the automobile in which the deceased was sitting. The defendant called and requested Crowder to go with him a piece down the road. Crowder asked the defendant what he wanted. The defendant whispered to Crowder something which Moore did not understand. Crowder said that he "didn't care nothing about it." The defendant thereupon said, "Come on and let's go down there." Without further exchange of words Crowder got out of the automobile and walked away. Dave Brown, who was sitting in his automobile, which was parked somewhat behind and a short distance from Coon Moore's automobile, testified, in substance, that John Crowder had been sitting with him in Brown's car just before he went to Coon Moore's automobile, and while sitting in Brown's car the defendant came and called Crowder from Brown's car. They walked behind Brown's car. Crowder remained a short time and returned, then went to Coon Moore's car. After Crowder was called from Coon Moore's car by the defendant and his brother, the three walked about fifteen steps from the back of Coon Moore's car. The witness could see the bulk of the three men by the reflection of a light from the church. He noticed that Crowder "looked like he was up off his hand; looked like he had fell and was trying to get up off his hand. He was down whenever I saw him. That was after they walked into the light. . . The next thing I saw was this boy getting up. . . I don't know where these two North boys were when I saw the Crowder boy getting up. . . When the Crowder boy got up he went on around Coon Moore's car." Crowder, the deceased, never spoke, and died in about fifteen minutes, near Coon Moore's car. In the afternoon, several hours before the killing, the defendant and his brother Bunk North and the deceased had some kind of difficulty.

The testimony as to this previous difficulty is set forth in the record as follows: "While I was there that evening, if there was any trouble between the dead man and Goodwin North, I answer they had a squabble that started off the church ground. They left and walked out in the field. I went to go through the field. I went out there after it began with Roy Brown and Traylor Crowder, who worked with me. There wasn't any trouble or dispute between the dead boy and this defendant. . . They just got to talking and arguing. I don't know what they were talking and arguing about. This boy left and went to the field, and the other boys followed on down there. I left the North boys there and John Crowder. The dead boy and two North boys were still left in the field. I don't know what was said between them. I just passed and walked off. I seen there was having a little trouble. I don't know what became of them after I left. . . I don't know what the trouble was. I come out there amongst them and told them to stop. I was talking to these boys, it was Goodwin, John and Bunk, the two North boys and the dead boy. They were all the ones there when I got there. They wasn't doing nothing when I got out there. Talked to them about disputing, and they said they had done forgot it, ``it is all settled.' Bunk says, ``It's all settled, all right.' Goodwin and the other boy went down south down to the road, and Bunk come down to the church. I didn't see them any more. Goodwin and the dead boy went down the road, and Bunk in the church. I never could learn what the dispute was about. Why I went down there, they got noisy. Got pretty noisy, and I went there to stop them. I couldn't understand what they were saying. I left the church and went there to stop the road [row]. I come out the far side, and they went across the cemetery. I seed them come on walking the other side of the cemetery. I walked out there behind them. I don't know what the trouble was."

There were three knife wounds on the body of the deceased, one in or near the heart, which caused his death. A few hours after the homicide a county policeman arrested the defendant and his brother. The policeman testified: "I recollect getting information when John Crowder was killed. I went down there. I got there after dark sometime, may be eight-thirty. I found a pretty good crowd there standing about in the yard, down close to the road; a few standing around where the Crowder negro was. I saw the dead negro. He was lying down on his back near Coon Moore's car. He said he hadn't moved anything. I pulled up his shirt and found a stab right along about here on this breast [indicating] left side of his breast, right along about there [indicating]. I didn't examine the other part of the body. I didn't make any examination of any other wound. I went on and arrested the North boys. Goodwin and Cecil, or Felix. I believe it was Felix. They lived three or four miles from there. We found them in bed at home, both of them. I found a knife in the pants hanging at the head of the bed Goodwin North was sleeping in, and he took those pants and put them on. I took the knife out of the pants he got up and put on. I examined the knife, and there was blood on it. I arrested these boys that night. Henry Knott was with me. We brought them to Carrollton and turned them over to the sheriff. In response to a question I asked him, he said he stabbed him. The statement he made was freely and voluntarily made. We didn't threaten him; just questioned him about it. We held out no inducement to him to make it. All the conversation we had we questioned him after he got out of the house to the car. Before he left the house he told me he stabbed him. On the way to town I questioned him about why he stabbed him; asked him if he had a row. He said they had a little trouble, him and some other fellows. I asked him what about, and he wouldn't tell us. Asked him why he stabbed him, and he says ``I don't know'; but the other one spoke up and says, ``Somebody told us he was going to kill us both,' and says, ``I called him out of Coon Moore's car. I figured to talk to him, and he grabbed me and Goodwin stabbed him.' I says, ``Is that right, Goodwin?' He says, ``Yes, I stabbed him.' I says, ``What did you stab him for; did he have a knife or pistol?' He says, ``No sir.' I says, ``Why did you stab him?' Rode on about five minutes, and he says, ``Cap, will this keep me out of the army?' I says, ``I don't know. Is that why you stabbed him?' He didn't say yes or no. He replied, ``I have got to go to the army next week.' Then I went back over the question why he did it, if he had a pistol or knife, and he said he didn't. I asked him, ``Did you have to stab him?' He said he didn't reckon he did. I says, ``Did you tell your brother to go out there and get him out of the car?' He says, ``Yes.' He says, ``When he come out of the church I went in the church a little while. We both went up to the church. We come out to Brown's car.' He said he got in the car and stayed in the car a little bit, and got out and went across the yard and got in the car with Moore and when he come from the church, and he said this boy come down across the yard and Crowder was in the car, was in the car with Brown, and from there over to Moore's car, and he went to Moore's car and called him and told him he wanted to speak to him. I said, ``That is what Moore said, is that true?' He said, ``Yes I called him out.' That was the youngest brother, Felix. He said he come out to the back end of the car, and he said, ``I heard he was going to kill us both,' and he talked to him about it. I says, ``Where did that happen?' He said, ``Right at the back of the car in the edge of the road, right back of the car he got out of.' I said, ``How long was it before you had the trouble after he got out of the car?' ``Just as we got to the edge of the road.' I says, ``Is it true the other brother run and holloed, "Come on Bunk?"' ``Yes. He holloed, "Come on Bunk," and they both went down the road running.' I asked the younger boy if he cut him, and he said no. I said, ``Are you telling the truth about it, the other brother cut him?' He said, ``Yes he cut him.' I told him, ``You have played the wild.' That was the younger one."

Q. "First went to these boys' house that night before you arrested them, or when you got in the car, did either one of them say anything to you, ask you any question as to the condition of this Crowder negro?" A. "The younger boy asked Mr. Knott if he was dead. He knew what we were after. He knew it, because I told this boy to get up, wanted him to go down there about this row. The other boy raised up in bed and says, ``Is he dead?' I examined the dead negro's pockets when I got down there, and did not find anything in them, did not find any weapons in them."

The defendant made the following statement in his defense: "I come out of the church, come down, and me and him was talking. Walked down the road, got down the road a little piece, and he says, ``You have been trying to run over me.' I says, ``No.' He says, ``You are a damn lying son-of-a-bitch. I am going to kill you.' He grabbed my left hand right there [indicating] and started at me. He went in his pocket and got a knife out, and I went in my pocket and got a knife out, and I cut him, and he turned me loose. Whenever they arrested me what I said I don't know. I was scared. The first time I ever been arrested. If I made the statement I don't know nothing about it." 1. The defendant earnestly contends that the evidence does not sustain the verdict of voluntary manslaughter; that under the evidence the defendant was either guilty of murder or of no offense at all; and that the court erred in submitting the question of voluntary manslaughter to the jury. Under the record of this case, we can not agree with able counsel. If the question of voluntary manslaughter under the evidence and the defendant's statement in this case was closer and more doubtful than appears from the record, still it would have been the duty of the trial judge to submit the principle of voluntary manslaughter for the jury to determine. In Smith v. State,147 Ga. 682 (95 S.E. 223), under a statement of facts which will be found by reference to the case, the court held: "The statement and evidence just recited, if true, were sufficient to authorize the jury to find the commission of an assault by the deceased upon the accused. Thomas v. State,99 Ga. 38 (2), 42 (26 S.E. 748); Rutherford v. State, 5 Ga. App. 482 (63 S.E. 570). And the jury might have found that the assault was not felonious, and being so, that killing to prevent its perpetration would be voluntary manslaughter. Tanner v.State, 145 Ga. 71 (88 S.E. 554); Northfoot v. State,142 Ga. 714 (83 S.E. 655)." In Reeves v. State, 22 Ga. App. 628 (97 S.E. 115), this court said: "It is well settled by repeated rulings of the Supreme Court and this court that on a trial for murder, if there is anything deducible from the evidence or the defendant's statement that would tend to show manslaughter, voluntary or involuntary, it is the duty of the court to instruct the jury fully on the law of manslaughter.Crawford v. State, 12 Ga. 142 (6); Jackson v. State,76 Ga. 473; Wynne v. State, 56 Ga. 113; Bell v. State,130 Ga. 865 (61 S.E. 996); Strickland v. State, 133 Ga. 76 (65 S.E. 148); Pyle v. State, 4 Ga. App. 811 (62 S.E. 540). In the Crawford case, supra, the court strongly expresses itself on the subject, as follows: ``When a defendant is put upon trial for murder, and there is any doubt as to the grade of homicide of which he is guilty, it is the duty of the court clearly and distinctly to instruct the jury as to the law, defining the several grades of homicide as recognized by the Penal Code, and then leave it to the jury to find from the evidence of what particular grade he is guilty.' In Jackson v.State, supra, the court uses still stronger language, and holds that ``where there is evidence sufficient to raise a doubt, however slight, upon the point whether the case is murder or manslaughter, voluntary or involuntary, the court should instruct the jury upon these grades of manslaughter as well as murder.' [Quoting from Cain v. State, 7 Ga. App. 24 (65 S.E. 1069)]. See Tanner v. State, 21 Ga. App. 190 (94 S.E. 67), and cit. Applying the rules laid down above, the court committed no error in charging the jury on voluntary manslaughter." InTucker v. State, 61 Ga. App. 661 (7 S.E.2d 193), the court said: "1. Where on indictment and trial for murder the offense of voluntary manslaughter may be reasonably deduced from the evidence or the defendant's statement considered separately or together, a charge upon the law of voluntary manslaughter is authorized. 2. ``Where the evidence, or the defendant's statement, or portions of the evidence and portions of the statement combined, raise a doubt, however slight, as to whether the homicide was murder or voluntary manslaughter, it is not error for the court to instruct the jury upon the law of voluntary manslaughter.'Mincey v. State, 27 Ga. App. 4, 6 (107 S.E. 546)." SeeEchols v. State, 63 Ga. App. 413 (11 S.E.2d 256), as to a previous difficulty.

It is urged under the general grounds that the evidence does not warrant a verdict of voluntary manslaughter, and it is urged under a special ground that the court erred in submitting to the jury the question of voluntary manslaughter. These contentions are without merit.

2. The remaining question to be determined is whether the newly discovered evidence demands a reversal. The defendant produced affidavits that on the afternoon of the homicide several persons heard the deceased while standing in front of the church make the remark substantially that if he could get the North boys (meaning the defendant and his brother) out of the house and away from the church, he would go and "cut the hell out of both of them." It is conceded by counsel that the granting of a new trial on newly discovered evidence is left to the sound discretion of the trial judge, and that this court is without authority to reverse his judgment thereon unless a manifest abuse of discretion is shown. The facts of this case present no occasion which demands a reversal. Indeed the record reveals that after the defendant and his brother were arrested, in the presence of the arresting officer, when being questioned as to why the deceased was called out, the brother of the defendant stated: "Yes, I called him out. . . I heard he was going to kill us both, and he [meaning the brother] talked to him [meaning deceased] about it." Assuredly if the defendant and his brother knew only a short time after they were arrested that the deceased had threatened them, why did they not have their informer present at the trial to so testify? This we are unable to reconcile with the alleged newly discovered evidence. As to the discretion of the judge in passing upon questions of newly discovered evidence, seeBrand v. Lawrenceville, 64 Ga. App. 357 (13 S.E.2d 214), and the criminal and civil cases there cited. The court did not err in overruling the motion for new trial.

Judgment affirmed. Broyles, C. J., and MacIntyre, J.,concur.