11 Ga. App. 52 | Ga. Ct. App. | 1912
The plaintiff in error was indicted for murder, and convicted of involuntary manslaughter in the commission of 'a lawful act without due caution and circumspection. Upon the trial he did not deny the killing, but his statement would have authorized the conclusion that the homicide was a pure accident. There was also some evidence supporting his theory of the case; and, of course, if this testimony and his statement to the jury had been credited by them, an acquittal should have resulted. There is also evidence in the record which fully supports the theory that the death resulted from the discharge of a gun lawfully in his hands, which he was handling in a careless and reckless manner, but without any intention of killing the deceased, or of discharging, it. Evidently the verdict was based upon their belief that this testimony represented the truth of the transaction, for there was
We make this much reference to the evidence for the reason that there are certain assignments of error which are well taken, yet, in our view of the record as a whole (and especially in view of the verdict actually rendered), are not sufficiently material to effect a reversal of the judgment refusing a new trial. We do not subscribe to the doctrine that in any criminal case a defendant can be held to be so manifestly guilty as not to be entitled to the right of a fair and impartial trial, or so guilty as that he should 'be deprived of any substantial right. We merely adhere to the rule that while injury will ordinarily be presumed to result from error, still injury as well as error must appear, before it can be said that the refusal of a new trial, in a case in which the evidence authorizes the verdict rendered, although there is conflict in the testimony, is reversible error. And in a case in which it is perfectly manifest that the only serious error in no wise affected or contributed to the finding of the jury, the existence of the error becomes wholly immaterial. Passing for the present the general grounds of the motion for a new trial (which was overruled), for the reason that they will in this case be necessarily dealt with in the consideration of the special assignments of error, we will deal with the grounds of the amendment to the motion for a new trial in their order.
1. Exception is taken to the following excerpt from the charge of the court: “The burden is upon the State to rebut the presumption of innocence, and to show by evidence that he is guilty, before you would be authorized to return a verdict against him; and the evidence must be sufficiently strong to satisfy the minds and consciences of the jurors, beyond a reasonable doubt, of his
Our view of the above-mentioned assignment of error disposes also of the exception to the following instruction: “I charge you that for your verdict to be a legal and proper one, it must be founded on the evidence in the case, yet in this connection I give you another.rule which may or may not, as you must determine, affect your finding. In all criminal trials the prisoner shall have the right to make to the court and jury such statement in the case as he may deem proper in his own defense. It is not made under oath, and it shall have such force only as the jury may think right to give it. You may believe it in preference to the sworn testimony in the case.” It is contended that this was not a correct statement of the law, that it was confusing to the jury, and excluded from their consideration the statement of the defendant, and denied to them the right to find a legal and proper verdict upon it. It seems clear to us that the jury was not confined to the evidence, when the judge, after correctly informing them that their finding must be based upon evidence (in accordance with their oaths, which require their verdict to be according to the evidence), instructed them that nevertheless they might give preference to the statement of the defendant, over all the evidence in tlie ease. The same point was ruled adversely to the plaintiff in error in Jordan v. State, supra.
2. The court’s instructions as to dying declarations are approved as a correct, full, and explicit statement of the law upon
The^complaint is made, as to the instructions upon dying declarations, that the jury were thereby excluded from determining from the statement of the defendant whether or not a dying declaration was made by the deceased, and that the charge of the court denied the jury the right to believe the defendant’s statement as to dying declarations, if they found from the evidence that the deceased had hope or expectation of living. In the absence of a request, the judge, after having charged fully the law as to the defendant’s statement, with reference to the case as a whole, was not required to refer again to the statement, or-tell the jury that they were to consider it in determining whether the declarations of the deceased were in fact dying declarations. The instruction of the court to the effect that the statement of the deceased should be disregarded by the jury, if they found, from the evidence, that the deceased had hope or expectation of living at the time she made the statement, was correct. It is only when presumably all hope of living has been abandoned by the declarant that his unsworn statements can be received as evidence.
3. There is no error in the instruction of the court upon the subject of malice, nor did the court err in defining express and implied malice. The defendant was indicted for murder, and there was evidence which would have authorized his conviction of that offense, for the witness Lonnie Batchelor testified that he heard the defendant threaten the deceased, and saw him take deliberate aim and shoot her down without any apparent cause or provocation; and there was testimony from other witnesses as to previous threats, and evidence of a previous attempt upon the life of the deceased by the defendant.
5. It can not be said that the court erred in excluding the testimony as to the defendant’s statement made several minutes after the shooting, in reference to his lack of intention to discharge
6. We entertain no doubt that the court erred in permitting testimony to the effect that a witness, Lonnie Batchelor, whom it was sought to impeach by proof of contradictory statements, had, upon other occasions, made the same statements as those testified to by him upon the trial, and statements to the effect that his previous contradictory statements were false; the evident purpose of this testimony being to corroborate his testimony. The fact that a witness might at some time prior to the trial have made in effect the same statement of facts as that sworn to by him as a-witness does .not tend to corroborate or sustain his testimony when there has been an attempt to impeach him by proof of contradictory statements made by him, and can not properly be used to reinforce his testimony. However, the error in the present instance is immaterial, because it is apparent that the impeachment of the witness was completely successful. If this testimony, erroneously admitted, had served its purpose, and the testimony of Lonnie Batchelor had been corroborated thereby and sustained in the opinion of the jury, the result of the trial must necessarily have been the conviction of the defendant of the offense of murder. The fact that the jury found the defendant guilty only of involuntary manslaughter is demonstrative of the fact that they wholly disregarded the testimony of the witness whose veracity it was sought to sustain by the evidence erroneously admitted. The verdict rejected the
7. A very careful review of the record m this case convinces us that the finding of the jury is fully supported by the evidence, and that the plaintiff in error has no cause for complaint.
Judgment affirmed.