Pound v. State , 43 Ga. 88 ( 1871 )

Lochrane, Chief Justice.

This case comes before us on a motion for a new trial upon fourteen grounds, most of which involve questions of practice and evidence important in their adjudication, and one ground involving matter of the gravest public interest in the construction of the law of homicide arising under the provisions of the Code.

We will briefly dispose of the various grounds of error in the order in which they are presented by the bill of exceptions.

1. The first error assigned arises upon the admission of evidence by the State as to the defendant’s character for violence and evidence of specific acts in regard thereto, as original evidence. The general rule is, that the prisoner may give in evidence the character of the deceased for turbulence and violence. The rule contemplates only the general character in this regard, and particular acts of violence are not admissible: 4 Parkins’ N. Y., 558; 12 Rich. S. C., 430; 1 Met., Ky., 370. This rule is founded on the plainest principles of justice; for the character of the deceased affords strong light in which to view the transactions. In cases particularly of self-defense, that the deceased was a man of riotous and disorderly conduct, of overbearing and passionate disposition, easily excited to quarrels, and notoriously reckless of the feelings and rights of others, would constitute an essential element for the consideration of the jury, to ascertain whether the prisoner acted under the influence of self-preservation or was actuated by malice in the particular case.

But the Judge below enlarged this general rule by permitting the State to prove the general character of the accused for violence, and also particular acts. The principle upon which we presume the Judge acted was deduced from the language used by this Court in 18th Georgia Reports, and in fact such was the argument of Mr. Harrison, the counsel who argued this case ably for the State. That language is substantially, “ that when the facts of the killing show any doubt as to whether the prisoner was actuated by the principle of self-preservation or malice, any testimony calculated to illustrate the motive to the jury would be proper.” We have examined this question in its application to cases of homicide, but do not concur in the construction that the rule applies equally as the right of both ¡jar-ties. The prisoner may give in any testimony calculated to explain the motive under which he acted. He is the party charged, and the law presumes malice, from the fact of the killing, against him; and, to remove this presumption, such evidence is admissible, when offered by him to explain the motives of his action. But specific acts are not thus admissible except so connected with the homicide or growing out of the causes which led to it, or so cotemporaneous with its occurrence as to form a link in the chain of circumstances by which the case is bound together. And if the character of the deceased for violence is put in issue by the evidence offered for the accused, then the right to rebut such evidence is invoked, as a matter of right; but only then, and not till then. A new trial was granted when proof of the violent temper of the prisoner was introduced by the government where it had not been put in issue by him : State vs. Merrill, 2 Der., 269.

• Intimately associated in law with this principle is the ground of the second exceptions, founded upon the admission of evidence by the Court of the character of the deceased for peaceableness. We think it was inadmissible, and the Code, section 3704, does not change the general rule.

When the State of Georgia charges the commission of crime against the citizen, it is incumbent on the State to prove the accusation and to rebut, by proper testimony, matters permitted to be given in evidence for the defense, but not, in the first instance, to repel the presumption of the defense before these are put in issue by proof. We, therefore, hold that the Court erred in its ruling upon this subject.

The third ground of error is in the Court admitting the testimony of the witness, Carr, relative to what the deceased said to him touching the purpose with which the deceased took his axe to the field.

In the view we take of this case, this ground of error is not material; but as a matter of evidence was it properly admitted ? It may constitute a rule in other cases where its importance might Aveigli with significant influence on the verdicts of juries. The proposition is whether declarations of the deceased of peaceful intent, antecedent to the difficulty, connected with his taking a weapon or instrument with him, are admissible evidence for the State on trials for homicide. Nothing is more difficult than to lay down a general rule in cases of this character; the rules must, of necessity, bend with the weight of circumstances depending upon them. Accuracy of definition of what constitutes the res gestee is impossible.

In Munroe vs. State, 5th Georgia Reports, 85, this Court has laid down the general rule as nearly and clearly as it can be reached by legal rules, and to which we may only add that, in matters involving the motives of parties, Courts should lean rather to admitting what may have even slight weight than in excluding light from the jury. Human action generally is inspired by some motive, which may lie on the surface and be suggested by the results, or may lie deeper and find its solution by some act or declaration preceding it; and what significance such acts or declarations bear to the main transactions rests in the judgment of the jury, whose duty it is to see its reasonableness of connection and importance, if it has any, in the influence of the conduct of the party, drawn from the whole and especially subsequent facts of the case.

2. The fourth error combines the principle of objection assigned in the fifth, and we will notice them together. It appears from the record in this case that a part of the evidence taken down on a former trial was offered in evidence for the purpose of showing the witness, Carr, had previously failed, on full examination, to give in evidence a material statement testified to in the then examination before the Court, and also to contradict the witness by the conflict in such previous and present examinations. The Court held that the evidence could not be admitted except such parts as the Judge presiding decided to be in conflict, and characterized such previous record evidence to be hearsay. It after-wards appears that the State put the whole in evidence without objection; but as a question of practice and principle we are called to adjudge the right to the admission of evidence as offered by the prisoner.

We premise by saying, that evidence taken down by the Court on a previous trial, when properly proven, is not hearsay, but is entitled to the fullest consideration and weight as evidence; and it is the right of the defendant or State to offer it, under proper rule, to the jury,- either in whole or in part; if the whole is offered, to show the negative of something stated, not testified to on a former trial by the witness, and the character of the admission whether previously the subject matter was inquired about, and what was said at that time — or if a part is offered, then to read such part to the jury, who will apply it by their memory of what was then sworn to, and the question of conflict or its materiality, or its motive and effect, is for the jury and not for the Judge, under our system of evidence and practice. And, if upon the admission of such part or parts of the evidence as is thus given in, the State desires to offer the whole to explain or to rebut the parts previously given in by the prisoner, it is a right clearly recognized by the law for them to offer it, or vice versa, and read it to the jury, who must charge their minds with it and recollect it, as such testimony does not properly go out with the jury, but forms only a part of the general evidence in the case.

3. The sixth ground is predicated upon the admission of evidence concerning a particular fact of bad feeling between the prisoner and the deceased. The fact proven was, that in October or November, 1866, the deceased spoke to the prisoner at the Sunday-school, and he did not answer him. The killing took place in February, 1867. Was this testimony admissible to show the quo animo, upon general principles? For we do not care to limit these questions to any particular specialties arising out of this case. In Hatcher vs. The State, 18th Georgia Reports, 460, when there was a previous fight and continuing threats down to the transaction for which the prosecution was instituted, this Court held that it was necessary to commence and to go back by the connecting evidence to such previous difficulty, and this upon the principle that accruing provocation at the time ignores the effect of antecedent acts of provocation or threats.

In Dufree vs. The State, 33d Alabama, 380, proof of violence offered a servant of the prisoner, several weeks before the homicide, was not admitted. In Newcomb vs. The State, 37th Mississippi, 383, the mere fact that the deceased severely beat the prisoner, six weeks before the killing, was not admissible.

And cases might be multiplied to this effect, excluding evidence for the defense of particular acts of violence; the rule being that there must be some particular intent to kill in the previous quarrel, and this only for the purpose of showing malice, as threats or other intent are admissible for that purpose. But, under our rulings, we may say “that this Court stands pledged, by its past history, for the abolition, to the extent of its power, of all exclusionary rules which may serve directly or remotely, to reflect light upon the transaction upon which they are called on to pass:” 17th Georgia Reports, 460.

In Dillon vs. The People, 8th Michigan, when the prisoner was absent eight or ten months preceding the homicide, evidence of the state of feeling between the prisoner and deceased was admitted. The Courts have not agreed upon the time dividing legal or illegal evidence, so far as its admissibility is permitted ip relation to acts between the parties preceding the.homicide, and no general rule can be distinctly traced over this disputed ground of judicial controversy. All we may assert, within the principles recognized, is, that there must be some link of association, something which draws together the preceding and subsequent acts, something which presents cause and effect in the transaction. If separate, distinct and independent, they ought to be excluded; for while every spark of light may be admitted, it must be struck out of the facts of the case, by bringing them together. As for illustration, if A and B had a previous difficulty, and A attempted to shoot B, and by interference, was prevented, and the parties separated, and several months elapsed, and upon meeting A and B commence an attack, and either get killed, who was right or wrong in the previous difficulty is not material, and not to be considered by the jury; but the fact of the difficulty itself, showing the temper of the parties when they subsequently met, might lead the jury into a proper understanding of the acts of the relative parties and their conduct at that time. But the mere fact of not speaking, or slight personal difficulties, could only tend to embarrass the jury by introducing an element not connected with the case, and could only darken the counsels of the jury, if let in as an element for their consideration.

Between these two illustrations lies the dividing line dependent on the facts of the case, under the proper guidance and control of the Court, keeping in mind, as a cardinal rule, connection of causes with the final act, if particular acts are offered. As if A, jealous of his wife, finds B with her, and forbids him speaking to her, and afterwards meets B and her together, though weeks and even months have elapsed, the previous difficulty, though slight, would be proper evidence to go to the jury in case of homicide. But if A afterwards met B, and upon new cause of quarrel, distinctly separate from the first, the difficulty sprang up, the acts relative to the first ought to be excluded as not throwing light upon the homicide, and the fact of unfriendly feelings existing, is all which yyould be permitted.

4. The seventh ground of error is upon the charge of the Court. The Judge charged the 4266th section of the Code as applicable to this case, and qualified its application by the provisions in section 4267. In a word, the Court held that, “if, after persuasion, remonstrance, or other gentle measures used to prevent a forcible attack and invasion on the property or habitation of another, it could not be prevented, the party attacked might kill the person so forcibly attacking, if it appeared that the 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 (section 4266); and it must appear, in such case, 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 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 ”: Section 4267. The Judge added that this last section applied to all “murders.”

The substance of the charge further was that the Court held section 4266 to apply to cases of violence of the person, and therefore added, “If the prisoner had said to deceased, ‘If he came over the fence he would kill him, and he had gone over, he might’ have been justified in killing him, if the jury believed the words uttered amounted to a persuasion, remonstrance or gentle measure, and provided such killing was absolutely necessary, while deceased was on the fence, as described, and before he had gotten over, and then stated such killing must have been done under the conditions in section 4267/” He added, “Section 4267 applies to all murders, including any that may be committed, eontemjfiated in section 4266.” We may say at the outset of this question, that we differ with our brother below in his application of section 4266 to this case, under the facts, and in that section 4267 had any connection or application to section 4266, or a case where that section legitimately applied.

The facts of this case show Pound in a lane and deceased on the fence, in his own field, opposite. The evidence for defense claims that Pound stood a few yards from Carr, and deceased with his gun and Harrison with an axe. Pound said something to Carr about killing his dog. Carr did not reply. Pound then told Carr he had been sajdng he was a coward and would not fight, but if he believed he would not, come over the fence and try him. Carr said something not understood. Pound then said John Harrison, (deceased), a grand scamp, had been meddling himself about it. Deceased then said, “I won’t take that; you have done that that is unjust.” When deceased said this, he was chopping with his axe on the fence. Then Pound said, “Don’t you come over here, if you do I will kill or shoot you.” Deceased commenced getting over the fence, and, after giving him this warning, Pound shot him.

This, in brief, presents the question whether this act was within section 4266 of the Code. We think not. That section applies to cases where remonstrance or gentle means .fail to prevent a forcible attack on the habitation or property of another, and that it was absolutely necessary to prevent such attack and invasion or serious injury to the person, property or family, to kill the assailant. The whole section contemplates an attack upon the property or habitation of another, or to his person or his family, by an invasion of his rights of property, in the defense of which, after remonstrance, we may repel the force; for the attack must be forcible, and absolutely necessary, to justify taking life. The qualification of this section is apparent from its intent to justify the killing of one who forcibly invades the habitation or property of another, and who persists, after remonstrance with him, and qualifies section 4264, which gives permission to kill one who manifestly intends or endeavors, by violence or surprise, to commit a felony on either habitation, property or person. In the one case, as in burglary, robbery, or attempt to kill or maim, the law permits it without question, remonstrance, or other act. Such burglar, robber or felon, deserves death, and the law classes his killing with executions in advancement of public justice. If two or more tumultuously attempt to enter, the law permits instantaneous killing of such mob.

But the law puts to the act one proviso (section 4265) that bare fear of the acts alleged, will not bring the party within the rule.

Now section 4266 classes another line of defense after remonstrance. Such forcible attack may not comprehend felouy, but serious injury; and the person mentioned in the section 4264, is again contemplated in section 4266 if his rights are forcibly attacked, and after remonstrance, the party persists in his forcible assault, and he cannot induce him to desist. The law does not contemplate his running away from him, and disgracing himself and family. When he is assaulted he has, in law, the right to stand against every assailant. Pie is not obliged to run ; he may warn off invasion ; he may say, “ I will shoot you if you approach forcibly to invade my habitation, or injure my property, or deprive me of it, or if you design a serious injury to myself,” defending the same, and if the party persists in such forcible attack and invasion. The difference between the two illustrations from 4264 and 4266, is that in the one you may kill on sight, in the other you must first use gentle meaus to prevent the assault and invasion; but if the party keeps on forcibly to consummate his nefarious purpose, he forfeits his life to his assailant. And this law seems to be well founded in reason and justice. The peaceable and law-abiding are too often overrun by the rude violence of the reckless and unprincipled outlaw, and meet the outpourings of oaths and maledictions without resort to their natural and legal rights. If a man, q>eacebly walking the streets, is assailed by one threatening to cowhide him, and remonstrates with him, declining combat, is he bound, because a cowhide is not a weapon likely to produce death, and therefore the attack is not a surprise or a felony, to go into mutual combat to justify the killing under section 4267 ? And is life not more sacred than property, and may it not, in such case, be defended, after remonstrance, with equal privileges ?

5. We have heard this construction frequently given to the section 4266; and the use of the word person in the section has given some embarrassment in applying its provisions. Our opinion is, construing all the sections together, (and such is the proper mode of ariving at the correct conclusion,) that section 4266 applies only to the defense given to the citizen in protecting his habitation, or property, or family, or himself, while in such place, from forcible attack. The Code eularges the class, for at common law the dwelling house only was within the privilege of such protection. Now, under the Code, the habitation, property, or family, are expressly within it. The section is, “ 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 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.” This applies to the right of defense growing out of an attack upon a man, or his property, or family, where they are at his home; the household gods, so to speak, are regarded with peculiar sanctity in the protection of the law. For life would be without object if home and family could be invaded and the father could not slay the invader. That right which Chatham boasted for the English citizen in his castle, has come down as an heritage of the common law, and is the same found in section 4266, enlarged in the language, though not changed in the effect.

And the illustration given, if a man meets another and attempts to cowhide him, the assailed stands in his rights of self-defense on a different principle of the law; for while an assault may not amount to felony, yet if accompanied with such great personal indignity as arouses the party to kill, such justification of the act comes within section 4268: “And all other instances which stand upon the same footing of reason and justice as those enumerated,” etc. And the jury, under the facts-in the particular case, would be the judges; and, as we have said, the character of the deceased for violence is admitted to show the motive explanatory of the act.

In the ease at bar, whether there was or was not an attempt. to cross the fence, the facts did not bring the case within the section 4266 of the Code. If A, peaceably, in the discharge of his business, is attacked by B, who forcibly attempts an invasion of his habitation or property, or serious injury to them or him, and A remonstrates with B “ by soft words, turning away wrath,” persuading him to desist, and A does not invite or provoke B, by mutual disposition, to quarrel or abuse of him, but stands under the shelter of the law, boldly, and B still follows up A, and, despising warning, rushes upon him, A may kill B, if in his defense of habitation, property or family. But if A commences the difficulty and pursues it, and, when B takes it up, gives him warning to desist or he will kill him, A has no right to fall back on the doctrine of remonstrance and persuasion, under section 4266.

We, therefore, say we differ with the Judge below in his application of section 4266 to this case, for the proof shows nowhere such remonstrance as carries the case within the rule. The case was one simply of Pound, being where he had a legal right to be, with bad feeling between him and Carr, protecting his property originally from "interference by Carr’s hogs. He had his gun with him, rightfully, on his plantation, to protect his premises. The deceased, a tenant of Carr’s, with Carr’s son, ran out to the scene, deceased carrying an axe at an untimely season, for it was late in the evening. Why go to where Pound was? Why follow him up and down the fence? Admitting they were on their own ground, their acts show that they were disposed not to shun any consequences that might arise. The two went together to the field. When they were coming, Pound’s daughter goes to her father; his wife and son and little ones all gather around him. Why all this, if there was nothing in the approach, and the manner of the approach, to excite their apprehension ? A man may be deceived as to danger, but his wife and little ones grouping about him shows more to my mind than an ordinary act of deceased and Carr. I do not take the mere words of witnesses, but acts. And, while in this position, as I believe, both looking to a difficulty, Pound used language provocative of both Carr and Harrison. Harrison seemed, from the evidence, disinclined to take it, said he would not. And, if the physician’s testimony is to be regarded, (and for myself, I must be permitted to express my very high appreciation of medical testimony; thousands of cases have depended on it for conviction, and I certainly give it full weight for the accused) as he said he would not take it, he was a very few feet from Pound, ascending the fence, axe in hand. If the jury believed this, the mere question for the jury was, whether he intended to strike Pound with the axe. It was for the jury to say whether he was going over the fence after saying “ he would not take it,” meaning the words used by Pound. And if they so held, it seemed reasonable that he had the axe, inasmuch as Pound had his gun and gave warning he would shoot if he did come over. And, therefore, the law applicable to this case, upon the facts, was not under section 4266, but under the principles of self-defense and the exceptions of reasonable fears in his mind, if deceased succeeded in the attack then made. And we hold the Court erred in its charge, generally and specially, on the facts in this case.

6. The next ground of error is the charge of the Court: “ If you believe Carr, the Court charges that the homicide set forth in the indictment is murder.” This charge was error. The State had more witnesses than Carr. Out of their testimony arose many questions of fact, and to single out any witness by name and give this charge, where there was more than him, was error.

7. Again, we say it was error in the Court to compliment any witness in the case. Although the words used are not given, it appears, by the certificate of the Judge, that he complimented one of the witnesses for the State in the presence of the jury. Such act was improper in the Judge. The error, though unintentional, may have seriously affected and influenced the jury, and, as a practice, is liable to criticism, not commendation.

8. There is another ground of error in this case, which we do not regard as needing any comment, and must express some surprise at its reaching this Court, except upon the principle that frequently the Judges below overrule motions for new trial with the purpose of letting this Court hear the arguments and dispose of the case. The fact certified to is, that the sheriff handed the jury, while in their room finding their verdict, loose papers, purporting to be evidence. What effect these papers may have had on the verdict is immaterial; the act was illegal, and the verdict found by such jury was illegal, and the refusal to grant a new trial was error.

Judgment reversed.