89 GA 751 - Bailey v. State

¶1 *751Judgment affirmed.

Bosa Cameron: Was in Marguerite’s room when defendant came; five girls in there; when he came all the girls left, as we thought he came to see Marguerite. He did not strike her nor push her down, nor did he strike me. Did not see him strike peddler or stamp him. Shortly after leaving Marguei-ite’s room and going to my own, saw the peddler on his elbow in the hall, and defendant standing over him. He got up and ran by me into my room, defendant áfter him. Saw no blood on him as he passed me going in. Heard screaming in there. He was bloody when he came out. I left room as he came in, as I did not want to see fuss.-

According to the defendant’s statement, Becker'was asked to go, he having been there a quarter of an hour, and Marguerite wishing to speak to defendant privately; he refused to go, saying he had as much business there as defendant had; so defendant took him by the arm and led him to the door, and when they got to the door he started to strike defendant, who thereupon hit him only one blow with his fist, and he ran off crying for the police, etc.

The grounds for new trial are, that the verdict is contrary to law and evidence, and that the court erred in the following charges :

“ If you believe under the evidence in the case that Bailey, the defendant, entered that room and found, this man Becker there (it does not matter for what purpose Becker was there in this case), if he found him there and without provocation on Becker’s part, either by word or act, he assaulted him as alleged in the indictment, you are authorized to convict him. I charge you further on that branch of the case, that if you believe from the evidence that Bailey entered that room and for any reason proceeded forcibly to eject Becker from that room, taking him by the arm and leading him out or pushing him out, and Becker resisted, he-had a right to resist, and if because of that resistance: Bailey struck him, assaulted him, that would not he: sufficient provocation in the eye of the law.

“ The defendant’s statement . . is not made' under oath; it is not under the sanction of an oath,, and therefore is not like the testimony of a sworn witness.

“ If you find, in considering this case, there is a conflict in the testimony, reconcile it if you can ; let all the witnesses speak the truth. If you cannot, then you must determine where the credit shall be. given, looking to the number of witnesses on the stand', their opportunity of knowing what they testify about,, the connection of the witnesses with the case or with the- transaction, and any leaning the witness shows one way or the other; all that you ought to consider in determining which witness is entitled or best entitled to credit.

“ The State must satisfy your minds beyond a reasonable doubt; that should be a doubt arising out of the case itself, the evidence, the statement of the defendant, a conflict in the evidence, some deficiency in the evidence, something of that sort to create doubt in your minds.

“ If you find the case made out you say, c We, the jury, find the defendant guilty.’ If you believe otherwise, that he is not guilty, then you use the other form, which is,/ We, the jury, find the defendant not guilty.’ ”

Hardeman & Nottingham, for plaintiff in error.W. H. Felton, Jr., solicitor-general, contra.