Everett v. State , 62 Ga. 65 ( 1878 )

Bleckley, Justice.

1. Tiie declarations of the prisoner, offered in his behalf as evidence, were no part of, the res gestee, either of the walk which he took on the afternoon previous to the assassination, or of the assassination itself. From the ending of the walk, the declarations were separated by the interval of a whole night and much of the following day, and from the ending of the assassination, they were separated by several hours, in locality they were separated from the scene of either event by the distance of two miles.

2. The threats proved as made by the prisoner against the life of the deceased, were threats of jealousy, not of ordinary rage or anger. They were not recent, but the evidence indicates that the passion which prompted them was still in full heat, and, instead of abating since the threats were made, that it had been lately rendered more intense by the prospect of the girl’s approaching marriage. He had long ceased to utter threats, but as his illicit relations with her continued, and his interest in her was not lessened, his purpose to sacrifice her rather than see her possessed by another, as openly declared some years before, was possibly not the less settled because cherished more discreetly in silence. The threats to which the witnesses testified, showed that his mind was formerly turned to the awful means of baffling his rivals which his or some other hand ultimately employed. He had thought of slaying her to prevent others from enjoying her, and sure enough, when the time grew near for her to be married to a man of her choice, she was horribly butchered in the woods not far from the prisoner’s house. Is there a donbt that his old passionate threats, the offspring of the sort of love that can kill, are calculated to cast some light, though dim and indistinct it may be, on the tragic end of this poor, guilty girl ? Our concern with them at present is only to see that they are admissible evidence, and we so pronounce them. Shaw vs. The State, 60 Ga., 246.

3. Doctor Timberlake had, for more than twenty years of his life, been a practicing physician, and, though he had retired as a general practitioner, was not wholly separated from practice at the time of the trial. He still practiced some in his own family. -But irrespective of this last circumstance, we think he was an export relatively to the special subject matter on which he was examined. One who had ever studied anatomy and physiology sufficiently to become a physician, would not be likely to err in forming opinions upon such questions as' Dr. Timberlake was called upon to answer ; such as, the force by which blood would flow from a wound in the throat, made by cutting while in life or after death ; whether the blood would be likely to touch and stain the clothing of the person who made the incision; what artery would have been severed by the gash described; whether the deceased could have inflicted it upon herself, and with what result as to the jetting out or spirting of the blood; what differences in the effects would have ensued from different positions of the body ; what .degree of force in a blow would be required to suspend animation so as to arrest the flow of blood, etc. As to the sufficiency of the wounds described to produce death, there could be no possible doubt. The witness Eel-ton, was not an expert, but in giving his opinion concerning the wounds, etc., he rendered his reasons by stating the facts. Code, §3867. He saw for himself all the facts on which his opinion was based, both as to the wounds and the. apparent impossibility that the deceased could have inflictéd them upon herself, and thesé facts he detailed to the jury-

4. The general charge of the court embodied the substance, and almost the language, of the request to charge made by the prisoner’s counsel. Even in a capital case, a request may be declined where to give it would be a mere repetition of what has already been fully and correctly delivered.

5. The entire charge of Judge Crisp is in the record; taken all together, it is fair and full, and lays down substantially the law of the case as applicable to the facts in evidence. A nice verbal criticism would discover, perhaps, a few inaccuracies of expression, but these may be treated as immaterial, since they are checked and virtually corrected by the general import and spirit of the instructions. If the language excepted to in the motion for a new trial stood alone, there would be difficulty in arriving at the exact meaning of the judge when he says, “Circumstances satisfactorily proven which point to the guilt of a party, and which are irreconcilable with the hypothesis of his innocense, or which require explanation from him and may be explained by him if he be innocent, but which are not so explained, ought to satisfy the conscience of every juror, and justify him before that forum for rendering a verdict according to their almost unerring indication.” The charge in its completeness is too lengthy for insertion in this opinion, but from an examination of it, we are satisfied that no mistaken impression was produced upon the jury by the foregoing extract. The judge did not intend to express his opinion that the circumstances of this particular case indicated guilt, but that it was in the power of circumstances to indicate guilt with a precision almost unerring; nor did he mean to say that a conviction could be had in any case, though the circumstances, as left by the proof, were reconcilable with the hypothesis of innocence. Ilis meaning was, that though there can be.no conviction unless the circumstances are irreconcilable with the hypothesis of innocence, yet, the circumstances may be considered as being of this character when they are such as to require explanation, and none is given, if to give it would be in the party’s power were he innocent.

6. Both the credit and the intelligence of the witnesses were for consideration by the jury. The evidence was circumstancial, but if the jury believed the facts narrated to be all true, they could have reasoned therefrom to the guilt of the prisoner without subjecting the facts to any violent strain. We do not undertake to say that the prisoner is guilty, as an original proposition. All we can affirm is that he was legally convicted.

Judgment affirmed.