142 Ga. 286 | Ga. | 1914
Judgment reversed.
I can not concur in the reversal of the case based on the refusal of the trial judge to grant á mistrial because of remarks of counsel for the State during his argument to the jury, and the failure to rebuke counsel for making the remarks. We do not differ about the general rule of law, but in regard to its application to this case. Undoubtedly the State can not introduce evidence as to the general character of the accused, unless he first puts his
There was no eye-witness to the homicide. It occurred at night in the store of the deceased. Persons near by heard the shots and went to the place. The accused relied on his unsworn statement, claiming that the deceased attacked him with a pistol and he fired during a scuffle. He admitted having had a fight with the deceased about two years before the homicide, when he said that both were drunk. He further stated that some time later the deceased became angry with him because of his action when the deceased was disorderly and when the accused had been deputized to assist the town marshal. He claimed, however, that he thought both difficulties had been adjusted; but that the deceased was drinking on the night of the homicide, and again brought up the last trouble. He admitted that he took a small drink with the deceased that night, but stated that he refused another, saying that he had quit drinking, and had not drunk any since the previous July. The State introduced evidence in rebuttal of a number of the assertions made by the accused, and tending to show that he had been under the influence of liquor since July, and had been drinking on the day of the homicide. There was also evidence of a statement by him, two or three hours before the homicide, that he could kill “him,” without naming any person. Under such facts, counsel for the State could not argue the general character of the accused, but he could discuss the evidence in regard to the drinking by the accused and draw legitimate inferences therefrom. This was the law, and counsel for the State, in effect, so told the jury. Under these facts, I am unable to see that his doing so demanded a mistrial. Perhaps his expression that, when the accused does not put his character in evidence, “the State can not introduce testimony showing up his character,” may not have been an apt mode of expression, but it neither furnished cause for a mistrial, nor required a rebuke;