Flanegan v. State

Jackson, Justice.

The defendant was indicted for murder and found guilty of voluntary manslaughter; a new trial was denied him, and he excepted.

1. After a very mature consideration of this case, we have concluded to grant a new trial on the ground that the court erred in one material point in the charge to the jury. It appears from the i’ecord that Gunnels, a witness for the state, in answer to cross-questions, said that he did not say just after he pulled the accused from the deceased or jerked his hand back from striking him, or within a moment or two thereafter, “ where’s the God damned rascal, let’s kill him,” and that Munroe Pickett did not reply “ he’s gone, but I gave him five gashes in the back before he got away,” or words to that effect. It afterwards appeared by other testimony that conversation to that effect immediately at the close of the fight did take place between the two. Upon this state of facts the court instructed the jury in the charge as follows : “ But the defendant further insists in that connection, that if there was a knife used on that occasion it was not used by the defendant, and if the killing took place, it took place by reason of the fact that one Pickett was the guilty party and not the accused, and insists upon the testimony which has been submitted to you on that subject as being sufficient to satisfy your minds that *56 Pickett was the party who committed the offense. In that connection the court says to you did Gunnels ask ‘ where’s the damned rascal,’ referring to the prisoner at the bar, following it up with the words ‘ let’s kill him?’ If so what Pickett said, if he said anything in reply to that remark of Gunnels, was not evidence to establish the fact that he did give Tullís a number of gashes in the back, but may bo considered as evidence of what transpired between Gunnels and himself to see whether Gunnels did or did not swear truly.”

In view of the facts disclosed in the record, we think that this charge was erroneous. The deceased had severe wounds in the back, one physician testifying that they killed him or largely contributed to his death; the accused had no such wounds in the back ; the two men were fighting in the dark, and Pickett, if he cut one of them in the back with a knife, making several bad gashes, in all human probability cut the deceased, and if deceased died from these wounds, or would not have died but for these wounds in the back, Pickett may have killed him, though intending the licks or stabs for the accused. The conversation occurred just as Flanegan got away, and while deceased was bleeding with the wounds of which he died. Pickett was not making evidence for Flanegan, if he made the remark. It was part of the res gestee. It was almost instantaneous with the stabbing which the witness swore he said he gave ; therefore being res gestes, it became an act done during the fight or evidence thereof, if he said it, and was testimony not only to impeach Gunnels, but' to show that he did the stabbing in the back of deceased by mistake. It is clear therefore to us that the court was wrong to exclude it from the jury except to be used as impeaching the other witness. The jury had the right to consider it for all purposes, to be weighed by them with the other evidence. O'Shields vs. The State, 55 Ga., 696 ; Mitchum vs. The State, 11 Ga., 615 ; 1 Greenleaf Ev., 10 Ed., §§108-114.

2. The newly discovered evidence appears to be cumula *57 five and tending only to impeach the witnesses for state. Therefore alone, it could not operate to require a new trial. 25 Ga., 182 ; 37 Ga., 48 ; 39 Ga., 718 ; 56 Ga., 364 ; 59 Ga., 391 . But the case will be tried over, and then, of course, it can be used.

3. The trouble about the juror was answered by the explanations. So about the bailiff. Prisoner was not hurt. 18 Ga., 534 ; 19 Ga., 102 .

4. The part of the charge first excepted to gave the law substantially to the jury in regard to justifiable homicide, and taking the case altogether, we are unable to see any error except the exclusion from the jury of the evidence of Pickett’s sayings to show that he did what in the melee he said he did, as testified to by some witnesses. This evidence was good to be considered by the jury and weighed as part of the transaction for whatever they thought it worth; and on this ground, coupled with the conflict of evidence, the fact that Pickett helped bring on the fight, the darkness of the night, the reluctance, apparently, of accused to fight, and the general confusion, we think that the case should be tried again.

Judgment reversed.