Powell v. State , 101 Ga. 9 ( 1897 )

Little, J.

A number of grounds are set out in the motion for a new trial, which was overruled. Inasmuch, however, as the case, goes back for another trial, we purposely omit consideration of such of them as we do not deem material to be decided for the purposes of another hearing.

1. The first six grounds of the amended motion are based on the rulings of the court where witnesses were introduced by the defendant to show the character of the deceased for violence. Without going into the details of the rulings set out in these several exceptions, it is sufficient here to say that, except when special facts may have been shown to have existed in a particular case, proof of character, conduct or utterances of the deceased is not admissible in evidence in trials for homicide, because neither of them will ordinarily justify or extenuate the killing. 2 Bishop’s Crim. Proc. § 609. In the class of cases, however, where the defendant rests his defense on the claim that he acted in self-defense, the particulars and details of his action become material, because the law judges him by the necessity for his action as it truly appeared to him, and he may then legally give in evidence such things known to him of the character, prior conduct or threats of the person with whom he was contending as may justly be considered as affecting his action which brought about the homicide, and as well of “ a generally known evil trait of a sort which might properly influence his conduct, as that the attacking person was in character quarrelsome and dangerous.” 2 Bishop’s Crim. Proc. §§610,613; Doyal v. The State, 70 Ga. 134. Such evidence must, however, be confined to the general reputation of the deceased, and this can not be established by proof of specific acts. Doyal v. The State, supra.

It is not proper, in such examinations, when the question of the character of the deceased for peace or violence is in issue, to confine the testimony of the witness, in establishing general reputation, to proof of what is generally said in reference to the same. It is competent to show by a witness who lives in the same community with the person whose character is in issue, that he knows the estimation in which he is held by the people, and that he has never heard the character of such person questioned. If a witness called to prove the character of another were confined alone to the question as to what people said about a given person, such evidence would not in all cases tend to show the true standing of the person inquired about. If nothing has been said in the community in which a man lives against his honesty and integrity ; if it has never in any way been called in question, it would hardly be fair or reasonable to conclude that, because such questions had never been raised, the person inquired about had not any established character for such virtues. On the contrary, proof of the fact that no question had ever been raised against him in this regard, authorizes the inference that the character is good. What people in the neighborhood generally say is a fundamental source of inquiry by which character may be established; but if the witness is prepared to testify that he has never heard the character of the deceased for peaceableness questioned, that he has lived in the same community with him for any considerable length of time and has mingled with persons who knew him, it is competent evidence; and the result of such testimony is to show that the witness did in fact sufficiently know the general character of the person inquired about, to entitle him to testify in relation thereto. Flemister v. The State, 81 Ga. 768 ; Hodgkins v. The State, 89 Ga. 761.

2. The seventh and eighth grounds of the motion for new trial assign as error the refusal of the presiding judge to admit in evidence testimony that the defendant complained of his throat being sore, the witness having previously testified that he had seen marks like finger-prints on the side of the defendant’s neck, and the theory of the defendant’s case being that the deceased attempted to commit a felony on his person by choking him at the time he shot the deceased. Complaints of pain made by the defendant, under such circumstances, are admissible. Atlanta St. R. R. Co. v. Walker 93 Ga. 467; Broyles v. Prisock, 97 Ga. 643; 1 Greenl. Ev. § 102. What probative value such evidence, when admitted, may have, must vary according to the circumstances of each case. It may amount to very little, or, indeed, have no weight as affecting the result of the trial, or there may exist circumstances under which it would have a greater value. But in any event, what value is to be attached to it must be left to the determination of the jury charged with the ascertainment of the truth of the accusation made, and it comes to them as any other fact as part of the history of the case.

3. The twelfth ground of the motion alleges error in the ruling of the court by which the case was reopened and new evidence introduced after the same had been closed and the defendant’s witnesses discharged. Under the repeated rulings of this court, being so general as to need no citation, the question of reopening a case at any particular stage of the proceedings to let in additional testimony is largely in the discretion of the court'and must necessarily be so; and we are not prepared to say that the court abused his discretion in the present instance.

4. The court charged the jury the law in relation to confessions. The foundation for this charge is to be found alone in a statement testified to by witness Homer Adams, which was to the effect that he saw the prisoner after the killing in the court-house at Rochelle and heard him speak in relation to the killing as follows : “ He said that his conscience did not bother him any more about killing Reid than if he had killed a damned dog. He said he was sorry for his wife and on Reid’s wife’s account.” In opening his charge to the jury, the court instructed them that the defendant admitted the shooting, but insisted that it was done under circumstances of justification. The whole evidence and statement of the prisoner show that the question of whether the defendant did the shooting was not the real issue. The words used by the defendant, according to the statement of the witness, were in no sense a confession of guilt. They constitute certainly a criminating admission that he killed .Reid.. Further than this, the words tended to deny guilt in the commission of the act, in that his conscience justified the act. As a criminating admission against him his statement was admissible in evidence; but the court, in charging the jury, overlooked the distinction between confessions of guilt and admissions of mere evidentiary facts not inconsistent with innocence, and accordingly erred in treating the statement as a sufficient basis for giving in charge to the jury the law relating to confessions. Dumas v. The State, 63 Ga. 600 ; Fletcher v. The State, 90 Ga. 468 ; Nightengale v. The State, 94 Ga. 395.

5. In the twentieth ground of the motion for new trial it is urged that the court erred in its charge to the jury in relation to the impeachment of witnesses. The charge complained of is in the language following : “I charge you that a witness may be impeached by proof of contradictory statements; and if you believe that any witness has been successfully impeached, why then it would be your duty to discard the evidence of such witness, but it is for you to say whether or not you will believe the witness sought to be impeached, or the witness brought to impeach him; the credibility of all witnesses being for you and your consideration. If you believe that any witness has been successfully impeached in reference to contradictory statements upon some material issue in the case, and it must be some material issue in the case, then you would not be authorized to believe him, unless you find that he has been corroborated. He may be corroborated, or he may be sustained by proof of good character, or by other facts and circumstances in the case.” The proposition is laid down in 2 Thompson on Trials, § 2426, that the trial judge, in cautioning the jury in respect of the testimony of witnesses sought to be impeached, may instruct them that “ in determining the guilt or innocence of the defendant they are to consider the entire evidence in the case, but they are at liberty to disregard the statements of such witnesses (if any there be) as have been successfully impeached, either by direct contradiction or by proof of general bad character, unless the statements of such witnesses have been corroborated by other evidence which has not been impeached.” See also 39 Ill. 463 ; 101 Ind. 109 ; 66 Iowa, 152 ; 84 Ind. 12. The jury are the exclusive and sole judges of the credibility of all witnesses. Merchants Bank v. Trustees, 62 Ga. 271; Walker v. State, 72 Ga. 200; White v. Hammond, 79 Ga. 182; Cleghorn v. Janes, 68 Ga. 87. Therefore, when the credibility of a witness is attacked as by an effort to impeach him in any of the methods pointed out by law, the jury then become the triors of the credibility of the witness sought to be impeached, and of the witness or witnesses by whose testimony the attack is made; they are to weigh the opposing testimony, and at last say whether they will discredit the testimony of the witness sought to be impeached, and consequently give credit to that introduced by way of impeachment, or whether they will discredit the testimony introduced for the purpose of impeachment and credit that of the witness attacked ; in a word, it is the exclusive province of the jury, under all the attendant circumstances and conditions, to determine whether a witness has or has not been impeached. McPherson v. The State, 22 Ga. 479 ; Strozier v. Carroll, 31 Ga. 557; W. & A. R R v. Carlton, 28 Ga. 180; Fish v. Van Winkle, 34 Ga. 339; Shorter v. Marshall, 49 Ga. 31; Williams v. The State, 69 Ga. 14; Franklin v. The State, Id. 37; Ford v. The State, 70 Ga. 722; Saul v. Buck, 72 Ga. 254 ; Hodgkins v. The State, 89 Ga. 761; Lewis v. The State, 91 Ga. 168; McTyier v. The State, Id. 255; Rome R. R. Co. v. Barnett, 94 Ga. 447 ; Central R. R. Co. v. Phinazee, 93 Ga. 488 ; Duncan v. The State, 97 Ga. 180.

Some confusion seems to have arisen in the application of this doctrine, by reason of a failure, in applying it, to keep in mind the distinction between the impeachment of a witness and the attempt to impeach, and as to the duty of the jury in dealing with the testimony of an impeached witiiess, and that of a witness whose credibility has been attacked by way of impeachment, the terms “ impeachment ” and “ attack on the credibility” of a witness by way of impeachment, being treated as synonymous. It is a solecism to say that a witness has been successfully impeached. It is altogether proper to say that an attempt to impeach the credibility of a witness has proved successful. Impeachment, in evidence, is “ an allegation,, supported by proof, that a witness who has been examined, is unworthy of credit.” 1 Bouvier’s Law Dictionary, 774; to same effect see Black’s Law Dictionary, 593. It is the allegation, supported by proof. By the latter author proof is defined to be “ the logically sufficient reason for assenting to the truth of a proposition advanced.” See page 441. “ Proof, in civil process, is a sufficient reason for the truth of a juridical proposition by which a party seeks either to maintain his own claim or to defeat the claim of another.” Whart. Ev. § 1. “ Proof is the effect of evidence ; the establishment of a fact by evidence.” Code Civ. Proc. Cal. § 1824. Ayliffe defines “juridical proof” to be a clear and evident declaration or demonstration of a matter which was before doubtful, conveyed in a judicial manner.” Ayl. Par. 442. When a witness is impeached, his unworthiness of credit is absolutely established in the mind of the jury. The incautious use of the term “ impeachment,” and treating that term as synonymous with an attack upon the credibility of a witness by way of impeachment, as, for instance, in McPherson v. The State, 22 Ga. 479, where this language is used: “ Although a witness may be impeached, and may not afterwards be corroborated, yet it must be a question for the jury whether he is not still to be believed, notwithstanding the impeachment”; and similar expressions to be found in 28 Ga. 180; 34 Ga. 339; 49 Ga. 31; 69 Ga. 37 (10); 89 Ga. 765, have tended to suggest an apparent conflict between those cases holding -that the jury “may believe an impeached witness, notwithstanding the impeachment,” and those cases, as for instance, 69 Ga. 14 (28); 72 Ga. 254, holding that if a witness has been “successfully” impeached, it is the duty of the jury to disregard or discard his testimony, unless corroborated. With reference to the use of the term “ impeached ” in the cases first above referred to, the observations of Mr. Justice Lumpkin, in the case of Duncan v. The State, 97 Ga. 180, are applicable; which are to the effect, that by the use of the term “impeached” the court evidently referred to the attack which had been made upon the credibility of the witness or witnesses. He says, “It is more accurate, where one or more witnesses testify that another witness is of bad character and therefore not to be believed, to say that the credibility of the latter has been attacked, or that an effort to impeach him has been made, rather than to say flatly that he has been impeached. The court would not be authorized to tell the jury in plain terms that any witness had been impeached, in the sense that he had been successfully discredited.”

Tested by the previous rulings of this court, there is no error in the charge complained of. Properly interpreted, the charge was an instruction to the jury that it was primarily a question for them whether any' witness had or had not been impeached; that any witness sought to be impeached by proof of contradictory statements upon some material issue in the case, might be sustained by proof of good character or by other facts and circumstances; that is, in determining the question of impeachment, they were to consider these things; and lastly, the instruction that if the jury should determine any witness had been impeached, it would be their duty to disregard his testimony, was qualified by the further instruction that they would be so authorized, unless such witness had been corroborated.

6, 7. The twenty-second ground of the motion for new trial alleges that the court erred in the following charge to the jury : “ Now look to all the facts and circumstances surrounding and connected with the case. If you find that the defendant and the deceased had a difficulty, look to all the facts and circumstances surrounding and connected with it. See whether or not it was necessary for the defendant to take the life of the deceased in order to save his own life. Before he would be justified and you would be authorized to find him guilty of no offense, you must believe from the evidence that it was necessary for him to take the life of the deceased in order to save his own life.”

The defendant in this case admitted the killing, but insisted that he was justifiable in shooting the deceased at the time. The charge of the court was quite full, and in the main satisfactory as explanatory of the law of homicide. After charging the grades of murder and manslaughter, the court did charge the law of justifiable homicide as found -in the Penal Code, §†0, and the effect of reasonable fear of the offenses designated in-that section as provided in the succeeding section, and likewise charged the law of justifiable homicide as laid down in section 73 of the Penal Code. These charges were made before the particular charge complained of was given. The latter, notwithstanding the former part of the charge, might be construed to have been a general summary of the law of justifiable homicide occupying the concluding part of the charge on the subject of justifiable homicide. As an abstract proposition of law, the charge was error. As a proposition of law applicable to a certain class of cases, it was not error; but inasmuch as the defendant relied on justifiable homicide, this charge, purporting as it does to state the proposition that, in order for the act of the defendant to he justifiable, it must be shown that it was nee'essary for the defendant to take the life of the deceased in order to save his own life, does not correctly state the law of justifiable homicide. The two sections of the Penal Code, 70, 73, are parts of the common law. Sir "William Blackstone, in the fourth book of his Commentaries, top pp. 134-137, in treating of justifiable homicide, uses this language : “ In some cases homicide is justifiable, rather by the permission than by the absolute command of the law, either for the advancement of public justice, or in such instances where it is committed for the prevention of some atrocious crime.” This is true “ by the law of nature, and also by the law of England, as it stood so early as the time of Bracton, and as it is since declared in statute 24 Hen. VIII., ch. 5 (5).” Further on, the same author, top pp. 138-39, treating of excusable homicide, declares that “Homicide in self-defense, or se defendendo, upon a sudden affray, is also excusable, rather than justifiable, by the English law ”• and is that “ whereby a man may protect himself from an assault or the like in the course of a sudden broil or quarrel, by killing him who assaults him. And this is what the law expresses by the word chance-medley. . . It is frequently difficult to distinguish this species of homicide . . from that of manslaughter. . . But the true criterion between them seems to be this: when both parties are actually combating at the time when the mortal stroke is given, the slayer is then guilty of manslaughter; but if the slayer has not begun the fight, or (having begun) endeavors to decline any further struggle, and afterwards, being closely pressed by his antagonist, kills him to avoid his own destruction, this is homicide excusable by self-defense.” Sir Matthew Hale, in his Pleas of the Crown, chapter 40, makes and preserves the same distinctions. Later common-law .writers, Russell, Chitty, Wharton, Bishop, and all others, so far as we have investigated, draw the same distinctions, from which it is evident that the compilers of our Penal Code, in the separation of these two classes of homicide, meant to continue the distinctions which existed at common law and which were there denominated, respectively, se et sua def endeudo and se def endeudo as applicable to two different classes of homicide. • As the effect of a homicide se def endeudo and se et sua def endeudo was in law the same, the statute, while preserving the distinction as to the facts which would justify the one and excuse the other, abolished the common-law classification of excusable and justifiable homicide. This doctrine is not a new one in our criminal jurisprudence, but one well known, and it may be that unnecessary reference is here made to the history of the two sections of our code. The distinction has time and again been recognized and applied by this court (see Monroe v. The State, 5 Ga. 85 ; Haynes v. The State, 17 Ga. 465 ; Keener v. The State, 18 Ga. 194; Aaron alias Bryant v. The State, 31 Ga. 167 ; Pound v. The State, 43 Ga. 88 ; Killen v. The State, 50 Ga. 230 ; Johnson v. The State, 72 Ga. 694 ; Crawford v. The State, 90 Ga. 701), and would not be referred to at this length, were it not that we have a certain class of cases where the' distinction is not drawn, and which, if followed, would seem to be in conflict with the principle announced in the above cases, as well as the ruling in this. As examples see Hinch v. The State, 25 Ga. 699 ; Stiles v. The State, 57 Ga. 183 ; Wilson v. The State, 69 Ga. 224 ; Heard v. The State, 70 Ga. 597 ; Darby v. The State, 79 Ga. 63 ; Jackson v. The State, 91 Ga. 271.

It must not be understood that we either rule or intimate that the law of justifiable homicide se def endeudo, as embodied in the Penal Code, § 73, is not good law. On the contrary, it is too well established and rests on too firm a principle to be questioned. In the cases to which it is applicable, it is the controlling law, and is supported by reason and the highest principles of justice. What we do mean to say is, that it is not applicable to cases of homicide where, for instance, the guilt of the accused is to be determined by the application of the law which justifies the homicide when done to prevent the commission of a felony, as provided in the code. It is undeniably true that a homicide committed in self-defense or in defense of habitation, property or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony on' either, is justifiable homicide. It is also justifiable homicide to take the life of persons who manifestly intend and endeavor, in a riotous and tumultuous manner, to enter the habitation of another for the purpose of assaulting or offering personal violence to any person dwelling or being therein. The only limitation which attaches to the justification of a homicide falling under these classes is, that the circumstances be sufficient to excite the fears of a reasonable man that the felony or riotous entry set out is about to be committed, and that the party slaying really act under the influence of those fears and not in a spirit of revenge.

An examination of these two sections will show that full liberty and power is given to the citizen who acts in good faith to protect himself, his family, his habitation and his property. It will further show that the law does not encourage the wanton or careless slaying of another; that on an occasion when two persons are at fault, when they willingly engage in an affray the one with the other, the law imposes a duty on the slayer, and that is that he shall be free from blame. To justify such a one, it is not sufficient that the other is attempting to seriously injure him, Having willingly engaged in the affray, he is in equal fault with the other, and under such circumstances it is not justifiable for him to slay his adversary without more. He must repent; he must endeavor to withdraw from the difficulty; and after having used his utmost endeavors to escape from his adversary, it is only justifiable for him, after having exhausted his opportunities to withdraw from the contest, to take the life of his adversary when it is absolutely necessary for him to do so iii order to save his own life.

It is entirely proper that these two sections of the code and these two theories of justifiable homicide should have been given in charge to the jury by the presiding judge in this case. It would not have been proper for him to have assumed, under the contentions raised, that this homicide occurred under circumstances which would make it justifiable under either one of the theories contended for; that was a question exclusively for the jury ; and having been charged with the law applicable to justifiable homicide under the two theories, the jury could and would have applied the same according to the evidence as they believed it to be. The error which we hold has been committed is, that, having given properly all the law in both sections of the code relating to justifiable homicide, in summing up his charge and in the concluding part of it, the jury were instructed to “ see whether or not it was necessary for the defendant to take the life of the deceased in order to save his own life. Before he would be justified and you would be authorized to find him guilty of no offense, you must believe from the evidence that it was necessary for him to take the life of the deceased in order to save his own life.” As a conclusion of the whole law, the jury might have understood from this charge that unless it was necessary for the defendant, in order to save his own life, to take that of the deceased, he would n'ot be justifiable. According to our view this is not a correct interpretation of the law, and the defendant is entitled to a new trial because of that fact.

Judgment reversed.

All the Justices concurring.