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CANDLER, Justice.
Murder. Before Judge Humphrey. Emanuel Superior Court. December 20, 1951.
1. A charge to the jury on circumstantial evidence is required only when a conviction depends entirely thereon. Williams v. State, 196 Ga. 503 (26 S. E. 2d, 926); Booth v. State, 198 Ga. 648 (32 S. E. 2d, 303); Pippin v. State, 205 Ga. 316 (53 S. E. 2d, 482). In this case the State relied upon direct and positive evidence for conviction; and a charge upon circumstantial evidence was, therefore, neither required nor authorized. Bivins v. State, 5 Ga. App. 434 (63 S. E. 523).
2. A rifle admittedly used by the accused in the commission of a homicide for which he is on trial, is clearly admissible in evidence over an objection that it had not been "properly and sufficiently identified as being the gun used in the actual killing."
3. The court, after first stating to the jury that the defendant was on trial for murder and had filed a plea of not guilty, further charged: "The defendant is presumed to be innocent of that charge until and unless the evidence satisfies your minds beyond a reasonable doubt as to his guilt. The burden of producing such evidence is upon the State." The quoted excerpt, when considered in connection with the charge as a whole, is manifestly not subject to the criticism of being erroneous because incomplete.
4. The verdict is abundantly supported by evidence.
5. Since neither the general grounds of the motion for new trial nor any of the special grounds thereof are meritorious for any reason assigned, the judgment complained of is not erroneous, as contended.
Napoleon Wise was indicted by a grand jury in Emanuel County for the murder of A. T. Horton Jr. On the trial several eyewitnesses testified for the State in substance: On the night of June 18, 1951, the deceased asked the accused to leave and stay away from his place of business because of disturbances he had created there. As the accused was leaving, he said to the deceased, "I better not catch you across the Ohoopee." A companion, speaking to the accused, said: "I wouldn't let that white man talk to me like that, I would get my gun and shoot the son of a bitch." The accused then left, but returned in 35 or 40 minutes with a rifle. The deceased was then closing for the night. The accused ran into his cafe and immediately afterwards shot him, without speaking to him. The deceased, at that time, was doing nothing to the accused, was unarmed, and unaware of his return. After the deceased fell, the accused started to shoot him again but, on being fired upon by a third person, he fled his victim's place of business. Later during the same night, the accused was arrested near Madison, Georgia. On his return to Emanuel County, and on being shown a rifle which an agent of the Georgia Bureau of Investigation had found at his home, the accused freely and voluntarily stated that it was the gun he used in the shooting and that he had let his brother have it after the shooting, getting a pistol from him. The accused offered no evidence but made a statement to the jury, in which he said that he and the deceased were friends; that he was at his place on the night of the shooting; that he and the deceased were drinking together; and that the deceased, for no reason known to him, first kicked him and then ran him down the road with an axe. He offered no excuse for his later return or for the shooting. He was convicted without recommendation and sentenced to be electrocuted. He moved for a new trial on the usual general grounds, and later amended his motion by adding other grounds complaining of the court's failure to charge upon circumstantial evidence, the admission in evidence of a rifle over his objection that it had not been properly identified, and the incompleteness of the court's charge on the presumption of innocence. His amended motion was denied, and the exception is to that judgment.
Eugene Cook, Attorney-General, W. H. Lanier, Solicitor-General, and Rubye G. Jackson, contra.
H. Alonzo Woods, for plaintiff in error.
Saturday May 23 05:07 EDT

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