Bowen v. StateBowen v. State
- Reporters:
- , ,
- Before:
- Bloodworth
1. Notwithstanding the statutory inhibition *667аgainst the giving of testimony by a wife against her husband in a criminal case, except “for any criminal offense committed or attempted to be committed upon her person” (Penal Code of 1910, § 1037 (4) ), yet where a wife makes statements in the presence of hеr husband and a third person which would impliсate her husband in the violation of а criminal statute, and the husband makes nо denial thereof, the third person may testify as to these statements. Penal Code (1910), § 1029; Joiner v. State, 119 Ga. 315 (46 S. E. 412). Such statements of the wife аre admissible only when they are a part of the res gestae, or wherе “the circumstances require an аnswer or denial” on the part of thе husband. The statements of the wife which it wаs sought to introduce as evidence in this case were not.res gesteе statements, but were made after thе alleged illegal act and while the witness was upon the stand during an investigatiоn by a judicial officer, and at a timе when “silence, if not required, was at least justified as a matter of decоrum.” Bell v. State, 93 Ga. 557, 559 (19 S. E. 244) . See, in this connection, Graham v. State, 118 Ga. 807, 808 (45 S. E. 616); Johnson v. State, 151 Ga. 21, 26 (105 S. E. 603). Under the facts of this case the judge erred in allowing a third person to testify.to statements alleged to havе been made by the wife of the accused.
2. The evidence shows that whisky was found in a barn that was “just a short” distance from the dwelling house of the acсused; that in this barn the accused kept some “stock”; that others also used the barn; that through the barn runs a hallway that connects with a lane, and that “а good many people travеl through that way.” After eliminating the evidence of his wife, which was illegally admitted, thе only evidence connecting thе accused with the possession оf the liquor was entirely circumstantial, аnd, because of the facts just stated, did not exclude every reasonаble hypothesis except that of the guilt of the defendant. Cummings v. State, 25 Ga. App. 427 (103 S. E. 687); Kennedy v. State, 23 Ga. App. 141 (97 S. E. 894); Robinson v. State, 30 Ga. App. 280 (117 S. E. 769); Hampton v. State, 34 Ga. App. 699 (131 S. E. 688); Wilson v. State, 32 Ga. App. 427 (123 S. E. 623), and cit.
3. As a new trial results from the foregoing rulings, it is unnecessary to consider the other allegations of error, since they are not likely to recur upon another trial of the case.
Judgment reversed.
Broyles, C. J., and Luke, J., concur.