| Ga. | Feb 26, 1897
The first four grounds of the motion for' a new trial are the general grounds that the verdict is contrary to law, evidence, etc. The fifth ground is, that the court erred in ■charging as follows: “notwithstanding the indictment in this case, the defendants enter into this trial with the presumption of innocence in their favor, which presumption •rests with them throughout the trial, until the State by satisfactory evidence overcomes that presumption and establishes their guilt upon each material allegation contained in the ■indictment and beyond all reasonable. doubt.” The exception to this charge is that, “by the use of the word ‘until’ in this connection and followed by the subsequent clauses set ■out, the court intimated to the jury an opinion that this presumption of innocence had been overcome.” ¥e do not •think the exception well taken. It would have been better to have used the word unless instead of wvtil, but the evident meaning of the charge is that the presumption of innocence rests or remains "with the defendants throughout the trial, or until, or up to, the time that the State overcomes it, &c. The present and not the past tense is used .throughout this part of the charge. It says that the de
2. It is complained that the following charge was erroneous: “Was Campbell murdered in this county, in the manner and at the time as alleged in the indictment? If so, who does the evidence point to with reasonable and moral certainty? Does it point to the defendants Campbell and Adaline Gray? If so, you should convict them; if not, you should acquit them.” The exception is that “said charge is error, because it expresses an opinion and assumes that a murder has been committed as alleged and that the evidence does point, with reasonable and moral certainty, to-some one as the murderer, and that assumption is followed by the suggestive inquiry, ‘Does it point to these defendants?’ and said inquiry itself being a strong way of asserting that it does point to the defendants.” There was no doubt whatever, from the evidence, that the deceased was murdered in Jasper county, in the manner and at the time charged in the indictment. There could be* no question, under the evidence, about these matters. The proof was-overwhelming, and there was no effort to show the contrary. While we think it best not to employ such interrogative expressions in charging the jury, yet we cannot say that an opinion is expressed, or an assumption made, by their use. And while this portion of the charge, standing alone, might be objectionable as fixing moral and reasonable certainty as all that would be necessary to produce the degree of mental conviction sufficient to authorize a verdict of guilty in this case, yet the error, if any, was cured when the court, in the-
3. The remaining grounds of the motion for new trial, ■which we shall notice specially, relate to the alleged newly discovered evidence. We do not think these grounds meritorious. So much thereof as relates to the testimony of Sallie Thurman, Leila Griggs and Harman Reeves might, by the exercise of proper diligence, have been obtained before the trial. The force and effect to be given to the testimony of Phillips and Whitten, granting that they were not impeached, depended entirely upon the credibility of the testimony of Sallie Thurman, and the State submitted much evidence to impeach her, as well as all the other witnesses giving the alleged newly discovered evidence. Therefore, from the character of this evidence, it is not at all probable that it would produce a different result upon another trial.
4. The evidence was sufficient to authorize the verdict, and the same having been approved by the trial judge, this court does not feel warranted in setting it aside.
Judgment affirmed.