Duke v. State

1. Where the only evidence offered by the State to establish the defendant's guilt of the crime of murder was the testimony of a witness that the dying person told him that the defendant shot him, and there is no evidence that the deceased knew that he was in a dying condition at the time the statement was made, such testimony was merely hearsay, and although admitted without objection, is wholly without probative value, and could have no weight in establishing the facts necessary to convict the defendant of the crime with which he was charged.

2. Where the defendant in his statement admitted that he shot the deceased, but accompanied his admission with an explanation that would negative malice, such a statement could not create a presumption of malice.

3. It was error to overrule the general grounds of the motion for new trial.

No. 16461. MARCH 16, 1949. Harold Duke was convicted of the murder of C. B. Thompson, with a recommendation of mercy. His motion for new trial, on the usual general grounds, was amended by the addition of two special grounds, the first assigning error because the court refused a continuance of the trial, and the second setting out newly discovered evidence. The exception here is to the overruling of the motion for new trial, as amended.

The entire evidence in the case as disclosed by the record was as follows:

John B. Brooks testified, on direct examination by Mr. Stark: "As sheriff I was called on April the 13th, 1947, to the home of Harold Duke, which was in Jackson County, Georgia. I was at Pendergrass and Mr. Reynolds was trying to call me, and I saw him and he said a Negro had got shot out at Harold Duke's, and I went out there to the house, and Jennie Duke was in there and C. B. Thompson was there in the house. He was sitting in a chair and Jennie was working on him. He had been shot in the breast with a shotgun. He was able to talk and said Harold shot him, is all. Q. Did he say why? A. No, he didn't say. He had no weapon on him. I didn't know where Harold was, but he wasn't there. I picked up C. B. Thompson and carried him and put him in the car and started to the doctor with him. He was bleeding. I thought he had a red shirt on but it was blood. He died between Pendergrass and Commerce in the car with me. He was shot right here (indicating his own breast). He was weak when I talked with him, he was wet with sweat. I asked him who shot him, and he said Harold Duke, and I asked him why, and he said he didn't know. This was in Jackson County, Georgia. The Negro they called Cabin got the gun. Mr. Park brought Harold Duke to jail the next morning. I looked for him that night but didn't find him. The girl Jennie didn't make any statement to me, only ``Do something for my uncle.' I couldn't say how long it had happened when I got there, but it couldn't have been over five or ten minutes. She (Jennie) did not tell you how it happened. A. No, sir. Q. Did she say anything? She just told me to do something for her uncle. Her uncle told me Harold Duke shot him. I think C. B. Thompson was living with Harold Duke. The shotgun was a 410. The shot from the gun killed C. B. Thompson."

This witness testified, on cross-examination by Mr. Westmoreland: "This took place around eight o'clock. Church was still going on. I didn't hear the shot. The house was close enough to the church to have heard the shot had you been listening. Mr. Park lives about a half mile from the house. I didn't go to Mr. Park's house. Mr. Park brought him down the next morning."

Cleveland Thompson swore, on direct examination by Mr. Stark: "My name is Cleveland Thompson, and the prosecutor in this case, C. B. Thompson, was my brother. My brother was living at Harold Duke's when he got killed. Harold Duke married our sister. He had been staying at Harold's about four (4) months. He was boarding there. I had heard of no trouble they had had. I saw my brother down here at the undertaker's shop after he was shot. He was dead. I had seen him that evening at Pendergrass. Nothing was the matter with him. I saw the hole down here at the undertaker's in his chest."

The defendant's statement was as follows: "Well, sir, he was my brother-in-law. Well, on that Sunday afternoon, he had been staying with me quite some little bit, boarding there. Me and him was just sitting down there as I say about three or four o'clock and just sitting there. Wife was getting supper, what we call late dinner on Sunday, and we was just sitting there and he had hung his head down, and I shook him and woke him up and I asked him, ``What about you just boarding yourself, it'd be a heap cheaper on you to board yourself than for me to feed you, I ain't got the money to feed you'; and he jumped up and wanted to cut me, and my wife was in there, and she said, ``What's the matter?' and I said, ``Nothing, he wanted to cut me here'; and I just walked on out the door, and when she got dinner done I told her we'd drive off down the road and maybe he'd get all right, and we rid on down to Jefferson here, and we got back time enough to milk and do the things; well we done up the things, and I was setting there fixing to go to bed, had off my shoes, and he came in there and when he come in the door he had his knife in his hand, and he was so drunk he couldn't hardly stand up and he fell up against the mantelpiece, and he had the knife in his hand and he asked me, what in the God damn hell I was trying to run over him for, and I told him I wasn't trying to run over him, and he said I was, and I was still going on to bed and I told him to go to bed and we'd talk this over tomorrow, and he said, ``I ain't going to talk over no God damn thing,' and he made at me with that knife, and I was sitting up against the wall this way, and my wife was in there and she grabbed him, and he had cut across my wife to get me, and on account of her baby she couldn't hold him, and he got loose and made at me again and I had to shoot him, and that's when I shot him, gentlemen. I had to shoot him and I didn't want to do it but just had to do it." The State's case rests entirely upon the testimony of Sheriff J. B. Brooks, since the testimony of the other witness sworn for the State, Cleveland Thompson, does not purport to state any fact pertaining to the homicide. In so far as the record shows, no objection was interposed at any time to the testimony of the sheriff. If the statements of the deceased as testified to by the sheriff were dying declarations as provided by the Code, § 38-307, they were properly admitted in evidence. Hawkins v. State, 141 Ga. 212 (80 S.E. 711); Fitzpatrick v. State, 149 Ga. 75 (99 S.E. 128). However, if the testimony of the sheriff did not make a prima facie case of a dying declaration, his statements amounted to no more than hearsay.

From a consideration of the testimony of the sheriff, it will readily be seen that the deceased made no statement tending to show that he was conscious of the fact that he was in the article of death, and there is nothing in the record to show that such statements as were made by the deceased were "in view of impending death and judgment, when the last hope of life is extinct, and when the retributions of eternity are at hand."Campbell v. State, 11 Ga. 353, 374; Roberts v. State,138 Ga. 816 (76 S.E. 361). If the statements made by the deceased were not with knowledge of impending death and judgment, that his last hope of life was gone, that his soul was soon to take its flight into the unexplored realms of eternity "from whose borne no traveler returns," the law would not impart that equal solemnity to his statements equivalent to testimony under oath.

The State may contend that, while the deceased made no statement tending to indicate that he had knowledge that his wound was mortal, or that he was in a dying condition, this fact might be inferred from the circumstances and the nature of the wound. See Campbell v. State, supra; Washington v. State,137 Ga. 218 (73 S.E. 512); Bass v. State, 152 Ga. 416 (110 S.E. 237).

What fact or circumstance can be gained from the record from which an inference might be drawn that the deceased knew he was mortally wounded and in a dying condition? So far as the writer is able to ascertain, no such fact or circumstance exists. There is no statement by the deceased that it would be useless to take him to a physician, nor a statement of any nature indicating any knowledge of the deceased that he was in fact in the article of death. It does not appear that the deceased ever made any statement as to the nature of his injury, nor does there appear to have been any accurate description attempted by the sheriff, who stated that the deceased was shot "here" (indicating on his own breast).

In this case there is no fact, statement, or circumstance that indicates that the deceased knew that he was in a dying condition at the time he answered the sheriff's two questions. It follows that the sheriff's testimony was not admissible under rules of law as a dying declaration. It amounted to no more than hearsay, and had no probative value.

"Since ordinary hearsay testimony is not only inadmissible but wholly without probative value, its introduction without objection does not give it any weight or force whatever in establishing a fact." Eastlick v. Southern Railway Co.,116 Ga. 48 (42 S.E. 499). See also Suttles v. Sewell,117 Ga. 216 (43 S.E. 486); Equitable Mortgage Co. v. Watson,119 Ga. 283 (46 S.E. 440); Estill v. Citizens SouthernBank, 153 Ga. 615 (113 S.E. 552); Berry v. Brunson,166 Ga. 532 (143 S.E. 761); Higgins v. Trentham, 186 Ga. 264 (197 S.E. 862).

From the statement of the defendant it will be observed that he admits shooting the deceased, but in so far as the State may rely upon the defendant's statement to sustain the conviction in this case, it is insufficient. There are some rules of law so well known and recognized as not to require any citation of authority. Perhaps one of the best known of these is the rule that there can be no murder without malice, either express or implied. Where the State proves a killing with a deadly weapon used in the manner ordinarily used to produce death, malice will be inferred, unless the same evidence presents circumstances of justification, alleviation, or mitigation. The jury have the right to attach to the defendant's statement such weight as they think it should have; they may believe it in part and reject it in part; they may believe it as a whole or reject it as a whole; and they may believe it in preference to the sworn testimony. However, in this case the State has offered no competent testimony to establish the crime of murder, and that part of the defendant's statement in which he admitted the killing would not raise a presumption of malice, since the admission was accompanied by an explanation of the homicide which would negative malice. In Futch v. State, 90 Ga. 473 (16 S.E. 102), it was stated: "If the accused admits the killing with a deadly weapon, but adds an explanation which might negative malice, no presumption that the homicide was murder would arise on such admission, but if no explanation were added tending to reduce the grade of the homicide, that presumption would arise." In the body of the opinion the rule stated is elaborated as follows: "In his statement to the jury, the accused admitted that he had killed the deceased intentionally and with a deadly weapon, but as we have seen, this admission was accompanied by an explanation which, if true, would negative malice. While such an admission, without any explanation as to why the killing was done, would give rise to a presumption of malice, no such presumption could be drawn from a statement which admits but at the same time justifies the act. That part of the statement which, if unexplained, would criminate, although it could be received as evidence of the fact it admitted, could not, to the exclusion of another part which qualified and explained it, create a presumption that accused was actuated by malice and was guilty of murder." The rule stated in Futch v. State, supra (which was a full-bench decision by this court), has been quoted and cited with approval by this court a number of times. See Owens v.State, 120 Ga. 299 (48 S.E. 21); Perkins v. State,124 Ga. 7 (52 S.E. 17); Green v. State, 124 Ga. 343 (52 S.E. 431); Mann v. State, 124 Ga. 760, 763 (53 S.E. 324);Manning v. State, 153 Ga. 196 (111 S.E. 658); Brown v.State, 184 Ga. 305 (191 S.E. 108).

The defendant in his statement having related that the deceased was advancing upon him with a knife, and having stated that he had to shoot the deceased, it may be assumed that the defendant anticipated that the deceased was about to commit a serious crime upon the person of the defendant. Such statement, whether or not sufficient to show complete justification, was sufficient to negative malice, and no presumption could arise from the statement that the shooting of the deceased by the defendant was murder.

There was no evidence of probative value to sustain a conviction for the crime of murder, and it was error to overrule the general grounds of the motion for new trial. No ruling is necessary on the special grounds of the motion.

Judgment reversed. All the Justices concur, except Atkinson,P. J., and Candler, J., dissenting.