Ayers v. State

Supreme Court of Georgia

Ayers v. State

103 S.E.2d 574, 214 Ga. 156, 1958 Ga. LEXIS 359

CourtSupreme Court of Georgia

DecidedMay 7, 1958

Docket20043

StatusPublished

Cited by9 cases

This text of 103 S.E.2d 574 (Ayers v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ayers v. State, 103 S.E.2d 574, 214 Ga. 156, 1958 Ga. LEXIS 359 (Ga. 1958).

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Opinions

Mobley, Justice.

1. As to the general grounds, counsel for the defendant contends that the State failed to establish the corpus delicti and rely upon Warren v. State, 153 Ga. 354 (2) (112 S. E. 283), where it was said: “To sustain a conviction in a case of homicide, it is essential to prove the corpus delicti; that is, first, that the person alleged in the indictment to have been killed is actually, dead, and second, that the death was caused or accomplished by violence, or other direct criminal agency of some other human being, that is, it was not accidental, nor due to natural causes, nor to the act of the deceased; and that the accused caused the death by one or more of the means charged.” Counsel admits that the death of the deceased was sufficiently shown, but contends that it was not proved that the defendant intentionally killed the deceased in the manner alleged. The indictment charged that the defendant did, with malice aforethought, murder the deceased by shooting him with a rifle and gun. There was evidence that the deceased was shot three times with a .22 caliber weapon, from which wounds he died. Whil§ in every trial for murder it is essential to a conviction that malice, express or implied, be shown (McMillan v. State, 35 Ga. 54), yet “Malice shall be implied where no considerable provocation appears, and where all the circumstances of the killing show an abandoned and malignant heart.” Code § 26-1004. And it is a well-settled principle of law that a presumption of an intention to kill arises from the use of a weapon that, in the usual and natural manner in which it was used on the occasion in question, was a weapon likely to produce death. Hanvey v. State, 68 Ga. 612 (4). There is evidence that the deceased was shot three times, and as far as may be determined such shooting was wholly unexpected, without warning, and without provocation. After shooting the deceased, the defendant got out of his truck and opened fire upon those who were trying to give aid to the deceased. When these had left [159]*159the scene, the defendant turned his gun on two innocent bystanders, and as they fled, shot one of them through the arm. In our opinion, this evidence in the record is amply sufficient to establish the ingredient of malice. The elements of the corpus delicti may be shown by circumstantial as well as direct evidence. Jester v. State, 193 Ga. 202, 208 (17 S. E. 2d 736), and cits.; Wright v. State, 199 Ga. 576(1) (34 S. E. 2d 879). The evidence supports the verdict, and the general grounds are without merit.

2. Special grounds one and two, excepting to the introduction in evidence of a .22 rifle and a photograph of the inside of the Mason car, are without merit.

3. Special ground three, excepting to the court’s charge on the law of murder, is but an amplification of the contentions' made upon the general grounds, and this ground is without merit.

4. In special ground four, error is assigned upon the following excerpt from the charge: “If a person is killed by another, as charged in the indictment, by an instrument in the manner in which it was used was one likely to produce death, and at the time of the killing there were no circumstances such as to excite the fears of a reasonable man that he was in danger from the deceased, under the instructions I have given you and shall give you, then the law would imply malice on the part of the defendant, and you would be authorized to find the defendant guilty as charged in this bill of indictment.” It is contended that this charge, under the evidence and the defendant’s statement, -was confusing and misleading to the jury, not adjusted to the evidence, and that said charge instructed the jury that, if the defendant shot the deceased without being in fear of danger, then they would be authorized to convict, whether the shooting was accidental or not. The charge excepted to is not a correct statement of the law as applied to the facts of this particular case, since the only defense relied upon by the defendant was that of accident. Code § 26-404 declares that “A person shall not be found guilty of any crime or misdemeanor committed by misfortune or accident, and where it satisfactorily appears there was no evil design, or intention, or culpable neglect.” The principle of implied malice from the use of a deadly weapon was [160]*160well stated in Smith v. State, 203 Ga. 317, 324 (46 S. E. 2d 583), as follows: “This court has repeatedly held that where a killing with a deadly weapon is proved to be the act of the defendant, the presumption of innocence is removed and the burden is then upon the defendant to justify or mitigate the homicide, unless the evidence offered by the State shows justification or mitigation. Vann v. State, 83 Ga. 44 (9 S. E. 945); Lewis v. State, 90 Ga. 95 (15 S. E. 697); Dorsey v. State, 110 Ga. 333 (35 S. E. 651); Williford v. State, 121 Ga. 173 (48 S. E. 962).” The presumption of malice arising from the use of a deadly weapon may be overcome not only by proof of circumstances of justification, but also by proof of accident or proof of a lower grade of homicide (Lewis v. State, 90 Ga. 95, supra); and where, as here, the evidence for the State shows a killing by the use of a deadly weapon and the defendant’s sole defense is that of accident, it is error to instruct the jury in effect that they would be authorized to imply malice from the use of such weapon and to convict the defendant unless it be shown that he acted under the fears of a reasonable man that he was in danger from the deceased. Under the evidence in this record, such charge eliminated the defendant’s defense, and while the judge later charged upon accident as a defense, he nowhere corrected his previous erroneous charge. Whether the defendant had overcome the presumption of malice raised by the State’s evidence was a material issue in the case, and it was error for the court to restrict the jury in its decision upon this matter to a question whether the defendant was acting under the fears of a reasonable man, or in other words, authorize a conviction if the jury found that he was not so- acting. The charge upon this principle being erroneous and upon a material issue in the case, the error was not rendered harmless by a subsequent correct charge on the law of accident as a defense to the crime charged. Citizens & Southern Nat. Bank v. Kontz, 185 Ga. 131(2) (194 S. E. 536); Bryant v. State, 191 Ga. 686, 719 (13 S. E. 2d 820); Western & Atlantic R. Co. v. Clark, 117 Ga. 548(2) (44 S. E. 1). The charge excepted to in this ground was error and harmful to the defendant, and the trial court erred in overruling this ground of the motion for new trial, and erred in refusing a new trial.

[161]*161 Judgment reversed.

All the Justices concur, except Candler, J., tvho dissents.

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Mobley, Justice.

1. As to the general grounds, counsel for the defendant contends that the State failed to establish the corpus delicti and rely upon Warren v. State, 153 Ga. 354 (2) (112 S. E. 283), where it was said: “To sustain a conviction in a case of homicide, it is essential to prove the corpus delicti; that is, first, that the person alleged in the indictment to have been killed is actually, dead, and second, that the death was caused or accomplished by violence, or other direct criminal agency of some other human being, that is, it was not accidental, nor due to natural causes, nor to the act of the deceased; and that the accused caused the death by one or more of the means charged.” Counsel admits that the death of the deceased was sufficiently shown, but contends that it was not proved that the defendant intentionally killed the deceased in the manner alleged. The indictment charged that the defendant did, with malice aforethought, murder the deceased by shooting him with a rifle and gun. There was evidence that the deceased was shot three times with a .22 caliber weapon, from which wounds he died. Whil§ in every trial for murder it is essential to a conviction that malice, express or implied, be shown (McMillan v. State, 35 Ga. 54), yet “Malice shall be implied where no considerable provocation appears, and where all the circumstances of the killing show an abandoned and malignant heart.” Code § 26-1004. And it is a well-settled principle of law that a presumption of an intention to kill arises from the use of a weapon that, in the usual and natural manner in which it was used on the occasion in question, was a weapon likely to produce death. Hanvey v. State, 68 Ga. 612 (4). There is evidence that the deceased was shot three times, and as far as may be determined such shooting was wholly unexpected, without warning, and without provocation. After shooting the deceased, the defendant got out of his truck and opened fire upon those who were trying to give aid to the deceased. When these had left [159]*159the scene, the defendant turned his gun on two innocent bystanders, and as they fled, shot one of them through the arm. In our opinion, this evidence in the record is amply sufficient to establish the ingredient of malice. The elements of the corpus delicti may be shown by circumstantial as well as direct evidence. Jester v. State, 193 Ga. 202, 208 (17 S. E. 2d 736), and cits.; Wright v. State, 199 Ga. 576(1) (34 S. E. 2d 879). The evidence supports the verdict, and the general grounds are without merit.

2. Special grounds one and two, excepting to the introduction in evidence of a .22 rifle and a photograph of the inside of the Mason car, are without merit.

3. Special ground three, excepting to the court’s charge on the law of murder, is but an amplification of the contentions' made upon the general grounds, and this ground is without merit.

4. In special ground four, error is assigned upon the following excerpt from the charge: “If a person is killed by another, as charged in the indictment, by an instrument in the manner in which it was used was one likely to produce death, and at the time of the killing there were no circumstances such as to excite the fears of a reasonable man that he was in danger from the deceased, under the instructions I have given you and shall give you, then the law would imply malice on the part of the defendant, and you would be authorized to find the defendant guilty as charged in this bill of indictment.” It is contended that this charge, under the evidence and the defendant’s statement, -was confusing and misleading to the jury, not adjusted to the evidence, and that said charge instructed the jury that, if the defendant shot the deceased without being in fear of danger, then they would be authorized to convict, whether the shooting was accidental or not. The charge excepted to is not a correct statement of the law as applied to the facts of this particular case, since the only defense relied upon by the defendant was that of accident. Code § 26-404 declares that “A person shall not be found guilty of any crime or misdemeanor committed by misfortune or accident, and where it satisfactorily appears there was no evil design, or intention, or culpable neglect.” The principle of implied malice from the use of a deadly weapon was [160]*160well stated in Smith v. State, 203 Ga. 317, 324 (46 S. E. 2d 583), as follows: “This court has repeatedly held that where a killing with a deadly weapon is proved to be the act of the defendant, the presumption of innocence is removed and the burden is then upon the defendant to justify or mitigate the homicide, unless the evidence offered by the State shows justification or mitigation. Vann v. State, 83 Ga. 44 (9 S. E. 945); Lewis v. State, 90 Ga. 95 (15 S. E. 697); Dorsey v. State, 110 Ga. 333 (35 S. E. 651); Williford v. State, 121 Ga. 173 (48 S. E. 962).” The presumption of malice arising from the use of a deadly weapon may be overcome not only by proof of circumstances of justification, but also by proof of accident or proof of a lower grade of homicide (Lewis v. State, 90 Ga. 95, supra); and where, as here, the evidence for the State shows a killing by the use of a deadly weapon and the defendant’s sole defense is that of accident, it is error to instruct the jury in effect that they would be authorized to imply malice from the use of such weapon and to convict the defendant unless it be shown that he acted under the fears of a reasonable man that he was in danger from the deceased. Under the evidence in this record, such charge eliminated the defendant’s defense, and while the judge later charged upon accident as a defense, he nowhere corrected his previous erroneous charge. Whether the defendant had overcome the presumption of malice raised by the State’s evidence was a material issue in the case, and it was error for the court to restrict the jury in its decision upon this matter to a question whether the defendant was acting under the fears of a reasonable man, or in other words, authorize a conviction if the jury found that he was not so- acting. The charge upon this principle being erroneous and upon a material issue in the case, the error was not rendered harmless by a subsequent correct charge on the law of accident as a defense to the crime charged. Citizens & Southern Nat. Bank v. Kontz, 185 Ga. 131(2) (194 S. E. 536); Bryant v. State, 191 Ga. 686, 719 (13 S. E. 2d 820); Western & Atlantic R. Co. v. Clark, 117 Ga. 548(2) (44 S. E. 1). The charge excepted to in this ground was error and harmful to the defendant, and the trial court erred in overruling this ground of the motion for new trial, and erred in refusing a new trial.

[161]*161 Judgment reversed.

All the Justices concur, except Candler, J., tvho dissents.

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103 S.E.2d 574, 214 Ga. 156, 1958 Ga. LEXIS 359, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ayers-v-state-ga-1958.

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