Freeney v. State

59 S.E. 788, 129 Ga. 759, 1907 Ga. LEXIS 578

• Court: Supreme Court of Georgia
• Decided: December 21, 1907
• Status: Published

Opinion

Lumpkin, J.

Mrs. Sallie Freeney was indicted for the murder of W. P. Harrell, committed by shooting him with a. pistol. She was convicted and recommended to be imprisoned for life. She moved for a new trial, which was refused, and she excepted.

1. Of the twenty-one grounds which make up the original and amended motion for a new trial only a few require special mention. Several of them, consist of long colloquies between the court and counsel, followed by explanatory notes by the court; which altogether make no very exact and clear-cut point. Of this charac-. ter was the first ground of the amended motion, which complained that the court committed error, after the regular panel of jurors had been exhausted, in not drawing the rest of the jury from the jury-box, at the request of defendant’s counsel, instead of orderr ing the sheriff, who was active in the prosecution, to summon tales jurors in and about the court-room and in the city of Eastman, where the trial took place. Attached to this statement is a copy of argumentative statements by counsel on both sides, and answers of the deputy sheriff to questions put to him, covering nearly two typewritten pages, and followed by.a note of the presiding judge, covering a third page. From these it may be gathered that no objection was made to the jurors who were summoned, nor any challenge; that no proof Avas offered to show that the sheriff was unfriendly to the defendant or was in any way engaged in assisting the prosecution; that he was related to the defendant by marriage, but was sick at home, and took no part in summoning the jurors, and this was done by a deputy under special instructions from the court; that the son of the sheriff was a bailiff, but was not present when the jury was secured, and had nothing to do with the matter; and that no request was made to draw the names of additional jurors from the box “until after the jury sworn and canvassed had been exhausted,” when the request was made, but was refused because citizens from all parts of the county were in the court-room and in the toAvn, and to stop and draw tales jurors and send to remote parts of the county to serve them would have involved a delay of a day or two. Apparently the relationship of the sheriff to the defendant, without any proof of ill feeling toward her, would be favorable to her, rather than otherwise. See Downing v. State, 114 Ga. 30 (39 S. E. 927). But if there was anything presumptively injurious to the defendant, the sting was drawn by the judge’s note.

2, 3. One ground of the motion for a new trial contended that the court improperly ruled that counsel for the State were entitled to the opening and conclusion of the argument. Counsel for the accused claimed that no evidence had been introduced in her behalf, and that certain rent receipts were merely referred to by her in her statement and exhibited by her and handed to the- jury, but mot introduced in evidence. Counsel for the State contended that the receipts were introduced in evidence, and that the right of opening and concluding the argument on behalf of the accused was thereby lost. The court sustained this position. Counsel for the ■accused then asked leave to withdraw the receipts from evidence, if they were held to have been introduced. The court ruled that they could withdraw the evidence, but could not thereby regain the right to open and conclude the argument.

The right to open and conclude the argument in a criminal case is an important right. If it be improperly denied, -this furnishes ground for a new trial. In criminal trials the accused has k right to make to the court and jury a statement not under oath. Counsel for the defendant have the right to comment upon the statement so made. It was held in Nero v. State, 126 Ga. 554 (55 S. E. 404), that the statement can not properly be made the vehicle for the introduction of documentary evidence, which should be formally offered; and that the presiding judge could decline to allow such documents to be read to the jury by the accused. In Nobles v. State, 127 Ga. 212 (56 S. E. 125), the accused, while making a statement, used for the purpose of illustration a map which he held in his hand, but it was not introduced in evidence. The majority of this court held that the presiding judge did not err in refusing to allow counsel for the defendant to make use of the map during his argument. The writer of this opinion dissented. See also Crawford, v. State, 117 Ga. 247 (5), (43 S. E. 762). If it were clear that the rent receipts which formed the subject of the ruling in regard to the opening and conclusion of the argument were merely read by the defendant as a part of her statement, without objection from counsel or ruling thereon by the court, and were not introduced in evidence, the writer would be strongly of the opinion that this would not have affected the right of her counsel to open and conclude the argument. But the exact question is, whether, under what transpired, as appears in the ground of the motion for a new trial and the note appended thereto, these receipts were simply read or spoken of in the defendant’s- statement, or were introduced in evidence. On this subject the court added a note containing the following: “One of the-contentions of the State was that W. P. Harrell had an interest in the house where Mrs. Freeney lived, and went there to collect his rent or see about it. This contention was controverted by the defendant, who claimed that Harrell had no interest in the house and that there was no rent due until March 25th, and that Harrell was killed on the 9th of March. Mrs. Freeney while on the stand referred in her statement to the receipts given for rents and exhibited them, when her counsel told her to hand them to the jury, and she did so, and after the jury had examined them and handed them back, then the solicitor-general requested the stenographer to mark them for identification. When Mr. Bowen, from whom 'Mrs. Freeney claimed the house was rented and who had been paid the rent by her, took the stand and was being cross-examined by Mr. DeLacy,. who was conducting the examination for the defendant, Mr. DeLacy handed Bowen one of the receipts and put the following question: Q. ‘Did you make that receipt?’ Ans. ‘Yes, sir.’ Q. ‘That covered the 9th of March, the day he was killed, did it not — from February 25th to March 25th?’ Ans. ‘No. sir. February 25th to whatever day this was.’ Q. ‘When did you collect?’ Ans. . ‘This is the 18th of March. I got it after Mrs. Freeney was in jail.’ Immediately after this answer; which was the last one made by the witness, Mr. DeLacy said, referring to the receipt on which Bowen had been examined, ‘We offer that with the others. They are already in evidence.’ To this remark of Mr. DeLacy the solicitor-general replied, ‘All right.’” •

Hnder this statement from the court, the defendant did introduce evidence, and thus lost the right to the opening and conclusion of the argument. It is said that the receipts are not in the brief of evidence, and that this shows that they were not introduced. They are briefly described at the close of the statement. The court refused to allow the evidence to be withdrawn so as to give the defendant the right to the opening and conclusion. This was not error, under the case of Zipperer v. Mayor and Aldermen of Savannah, 128 Ga. 135 (57 S. E. 311). While in this case the effort to withdraw was doubtless made in entire good faith (and we do not mean to intimate anything to the contrary), yet the establishment of a rule that the defendant has the right to introduce evidence and afterwards withdraw it and claim the opening and conclusion of the argument might lead to a situation not contemplated by the statute. Suppose that the defendant in a criminal case should introduce all the evidence, oral and documentary, which he could obtain, but the State should introduce evidence overwhelmingly rebutting and disproving it, if the rule suggested were. adopted, upon finding that the evidence would probably not avail him, he might, just before the beginning of the argument, announce that his evidence was withdrawn and claim the conclusion of the argument. Thus he might experiment by introducing evidence, and securing such impression as it might -make on the jury, and still retain the option to return to the position of having introduced no evidence and thereb3 securing the advantage of the opening and conclusion in the argument.

4, 5. It is often said that every man’s house is his castle. In early days men were compelled to protect themselves in their habitations by preparing them against attacks; and thus in time the dwelling came to be known as the dweller’s castle, the name probably having its origin in feudal times. If attacked in his home, he did not have to retreat, but could use necessary force to eject the intruder. It was not lawful to kill for a bare trespass on property. It must have been at least forcible. The exact character of invasion which would authorize a killing under the common law has brought out different expressions. In some cases it was stated that the owner of the dwelling could resist a forcible entry therein by force, but had no right to kill the trespasser unless necessary to prevent the pommission of a felony on his person or property, or on the person of some one under his protection in the house. In others the words “serious injury” were also used. State v. Taylor, 143 Mo. 150 (44 S. W. 785); 1 Bish. Cr. L. (8th ed.) §859; Young v. State of Nebraska (Neb.), 104 N. W. 867, 2 L. R. A. (N. S.) 66, and note; Askew v. State, 94 Ala. 4 (10 So. 657, 33 Am. St. R. 83, and note); Carroll v. State, 23 Ala. 28 (58 Am. Dec. 282); Note to State v. Summer, 55 S. C. 32 (32 S. E. 771, 74 Am. St. R. 707, 726-730); State v. Patterson, 45 Vt. 308 (12 Am. R. 200, and note); Allen v. State (Tex. Cr. App.), 66 S. W. 670; Clark’s Cr. Law (2d ed.), 170; Archbold’s Cr. Pl. & Pr. 796, and note. In the Penal Code enacted by the legislature in 1833 occurs the section which is now codified as section 72 of the present Penal Code. It reads as follows: "If after persuasion, remonstrance, or other gentle measures used, a forcible attack and invasion on the property or habitation of another can not be prevented, it shall be justifiable homicide to kill the person so 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.” In section 70 it'had been provided that it worild be justifiable homicide to slay in self-defense, or in defense of habitation, property, or person, against one who manifestly intends •or endeavors, by violence or surprise, to co'mmit a felony on either. Under that section, persuasion, remonstrance,, or gentle means are not declared to be first required. Section 72, quoted above, has reference to forcible attacks and invasions of property or habitation. In such cases, if gentle measures will not avail, homicide becomes justifiable, provided such killing is absolutely necessary do prevent such attack and invasion, and that a serious injury is intended, or might accrue to the'person, property, or family of the person killing. If this section meant that the injury must necessarily amount to a felony, it would require more forbearance and precaution to justify defense of person or property in an attack upon one’s own home than anywhere else. Such is not the meaning of the statute.

In Pound v. State, 43 Ga. 88, 136, it was said that the section under review (then numbered 4266) applied only to the defense given to a person in protecting his habitation, or property, or family, or himself, while in such place, from forcible attack. Some doubt as to this was afterwards expressed (Crawford v. State, 90 Ga. 701, 17 S. E. 628, 35 Am. St. R. 242); but we think it is sound. The property concerned in the Crawford case was meat which was being hauled on a wagon traveling along the road; and what was said as to the necessity for the crime to be a felony had reference to the case before the court, not to a question of forcible-attack and invasion of the habitation. In Pound’s case, 43 Ga, 135, supra, it was said that the section (now 72 of the Penal Code) “classes another line of defense after remonstrance. Such foreb ble attack may not comprehend felony, but serious injury.” This was said in the opinion in discussing the two sections above men' tioned. See, on the general subject, Horton v. State, 110 Ga, 739, 743 (35 S. E. 659); Palmour v. State, 116 Ga. 269, 271 (42 S. E. 512). And compare (on section 70, as to riotous and tm multuous entry by two or more) Smith v. State, 106 Ga. 673, 682 (32 S. E. 851, 71 Am. St. R. 286). It must.be carefully borne in mind that this does not give a free license to kill for slight provocation. It must appear that such killing was -absolutely necessary to prevent the forcible attack and invasion, and that a serious injury was intended or might accrue to the person, jDroperty, or family of the slayer. No exact definition of the words “serious injury,” as used in this statute, has been made. Clearly it does not authorize the taking of human life because of -every mere trespass upon property, or because of mere insulting words. In Nix v. State, 120 Ga. 163 (47 S. E. 516), Mr. Justice Cobb said: “It may be that a case might arise where a trespass upon property would be of such a grave nature as to amount to a serious injury within the meaning of the section; in other words, that-a trespass in its nature, gravity, and consequences would be such that the law might authorize the taking of human life to prevent its commission. But such a condition of affairs would be of rare occurrence in the transaction of human affairs, and certainly would not .arise out of one of the ordinary and every-day quarrels about property rights.” The threatened injury must be grave in its character and consequences. Human habitation is sacred, but so likewise is human life; and the necessity for slaying and the seriousness of the impending- injury to person, property, or family must concur to render the homicide justifiable, under this section of the Penal Code, after gentle measures to prevent the forcible attack and invasion have been used. ,

It being error, as an abstract proposition, to charge that the serious injury referred to in this statute must amount to a felony,was this error such as to require a reversal'in the present case? On this point the Justices of this court are equally divided in opinion. Justices Beck, Atkinson, and Holden entertain the view which may be thus stated: The statement of the accused, if accepted by the jury, would have authorized a finding that there was a forcible attack and invasion on her habitation, and that a serious injury was intended or might have accrued, which did not amount to a felony; and therefore an error in charging on that subject was material, and should require a new trial. The view of Chief Justice Fish and Justices Evans and Lumpkin may be_ thus stated: No theory of forcible attack and invasion upon the habitation of the accused can arise out of the evidence; and it is exceedingly doubtful if any such theory can be properly derived from the statement of the accused. It would seem to make rather a case of attack upon her person than upon her habitation. If such a theory can arise from the statement, and it be accepted by the jury, the facts which she stated make a case of an effort by the deceased to commit a felony on her (rape, homicide, or shooting at another) and raise no theory of “a serious injury” less than a felony. The charge, therefore, could not have injured her. The court charged fully on the law of voluntary manslaughter (including provocation by assault), and the law of self-defense and of defense of person and property against one who attempts by violence or surprise to commit a felony on either, and the law of reasonable fears. The accused had the full benefit of every theory in her case; and the inaccuracy in regard to section 72 furnishes no ground for a reversal.

6. The remaining grounds of the motion for a new trial do not require special mention. Some of them complain of a failure to give certain charges; but the presiding judge certified that no written requests to give them vvere made. Some of the grounds complain of charges which in themselves were correct; others of charges which, when considered in connection with the notes of „the presiding judge and the entire charge of the court, were not such as to require a reversal- Some complain of the admission of evidence, without setting out the evidence itself. One,complains of the testimony of a named witness (without stating what it was), that it was admitted over objection by the defendant “upon the ground that she had been previously examined.” It would serve no good purpose to take up each of these grounds and show wherein it is deficient in itself, or is exjilained by the note of the court, or that it is not error for the reason assigned, or that, when taken in connection with the charge as a whole, it is not of such a character as to necessitate a, new trial. Without pronouncing the charge or rulings perfect in all respects, if there were anjr other inaccuracies, they do not require a new trial.

Judgment affirmed.