159 Ga. 469 | Ga. | 1924
Lead Opinion
(After stating the foregoing facts.)
The defendant complains that the trial judge erred “in failing to instruct the jury that, to authorize a verdict of guilty in said
The defendant insists that the court erred in failing to charge the jury “that before the jury would be warranted to convict the defendant, the evidence must be sufficient to establish his guilt to a moral and reasonable certainty and beyond a reasonable doubt.” The judge.instructed the.jury that the defendant entered upon his trial with the presumption of innocence in his favor, and that “that presumption follows-him throughout the entire trial, and at every stage of the trial, until his guilt has been proven in the manner and form that the court will hereafter give you in charge.” The court then told the jury in what manner and. form the guilt of the accused must be proved, by giving them this charge: “Whether dependent upon positive or circumstantial evidence, the true question in criminal cases is, not whether it be possible that the conclusion at which the testimony points may be false, but whether there is sufficient testimony to satisfy the mind and conscience beyond a reasonable doubt.”- The court further charged the jury “that in any event, any evidence whatever of alibi is to be considered by the jury on the general case with the rest of the testimony; and if a reasonable doubt is raised by the evidence as a whole, the doubt must be given in favor of innocence.” He further instructed the jury that the law does not permit one to be convicted on suspicion, however violent the suspicion might be. In view of the fact that the court, in effect, instructed the jury that, before they would be warranted in convicting the defendant, the evidence must be sufficient to establish his guilt to a moral and reasonable certainty and beyond a reasonable doubt, the complaint that the court erred in failing to charge the jury as above set out is without merit: McBeth v. State, 122 Ga. 737 (50 S. E. 931). If the defendant desired further instruction on this subject, he should have presented a pertinent, timely request therefor.
The court charged the jury as follows: “Now the court will give you in charge the law as to implied malice, that is, that character of malice which the jury is allowed to imply.” The
The defendant asserts that the court erred in failing to charge the jur„y that “If a witness swear wilfully and knowingly falsely, his testimony ought to be disregarded entirely, unless corroborated by circumstances or other unimpeached evidence.” In the absence of a pertinent, timely request, the failure of the court to charge on the subject of impeachment of witnesses 'affords no ground for granting a new trial. Perdue v. State, 135 Ga. 277 (6) (69 S. E. 184); Benjamin v. State, 150 Ga. 78 (102 S. E. 427).
It is earnestly insisted by able counsel for the defendant that the verdict is without evidence to support it. This question has troubled us. The case against the defendant is a weak one; but after a careful consideration of the facts and circumstances of the case, we do not feel justified in holding that the verdict is without evidence to support it. We will state succinctly the evidence upon which the State relies for conviction. The case is one entirely of circumstantial evidence. In April before the homicide in November, the deceased and the defendant had a difficulty in which the defendant was cut by the deceased. After the cutting the defendant got one Henry Covington to take him to a doctor. On the way, the defendant said to Covington that he would kill Sewell before the sun rose the next morning. The defendant on this journey repeatedly said he would kill the deceased. On the morning after the return from the doctor’s, Covington visited the defendant’s house. The defendant had a pistol, and tried to get his wife and mother to let him go and kill Sewell. -He said that he was going to kill Sewell if he’ could get there. His wife and others persuaded him not to go, telling him that it would cause
Andy Covington, a boy fourteen years of age and a fellow servant of the deceased, left the mill when the employees quit work, and had gone about 50 or 75 yards, when he heard the pistol shot which dispatched the deceased, and saw a man running from the scene of the homicide. He testified that he did not know whom the fleeing man looked like, although he was well acquainted with the defendant, that he did not see the kind of clothes the man had on, that he did not see his face, but that he was about the defendant’s height and size. On being recalled to the stand, this witness testified that the defendant had on blue overalls on the-day of the homicide, that the man he saw running from the scene of the homicide had on overalls which looked like the same ones which the defendant had on at the mill, and that they were of the sort that practically everybody wore in that country. The defendant was a man weighing about 200 pounds.
Is the evidence sufficient to support the verdict? There was
Under our system of jurisprudence, juries are our chosen agencies for the determination of issues of fact. If they go far. afield and render verdicts without evidence to support them, this court will set them aside; but if there is evidence to support their verdicts, and their verdicts receive the approval of the trial judges, this court will not set them aside.
Judgment affirmed.
Rehearing
ON MOTION ROE REHEARING.
In the defendant’s motion for a rehearing it is urged that this court, in making the statement that the hostility of the defendant to the deceased “might have been due to the fact that the deceased had reported the defendant’s brother for illicit distilling,” erred because the evidence does not show that the deceased had reported the defendant’s brother for illicit distilling. The writer inadvertently made this statement. This inadvertence does not affect in any way the soundness of the conclusion reached by this court in this case. It is the existence, and not the origin, of the fixed hostility of the defendant to the deceased which is of importance in this matter.
It is further insisted that the court overlooked the cases of Bailey v. State, 104 Ga. 530 (30 S. E. 817), Williams v. State, 113 Ga. 721 (39 S. E. 487), Patton v. State, 117 Ga. 230 (43 S. E.