171 Ga. 530 | Ga. | 1930
On conviction of murder, Reuben Corley was sentenced to life imprisonment. His motion for a new trial was overruled, and he excepted.
One ground of the motion for a new trial complains that the court erred in admitting the testimony of witness Luther Garner, who related the sayings of another witness, J. C. Corley, with reference to the wife of the deceased, to wit: “He said after he came back from the chain-gang she would powder her face and put
Unless this ’evidence was material for the purpose of showing that the accused killed his brother because of a desire to possess the wife of the latter, thus showing motive, it would be irrelevant and immaterial. It fails to show any relevant fact on the part of the accused, even as hearsay. It is mere suspicion or insinuation on the part of J. C. Corley as to the daughter-in-law, for he states no act of the woman except the adornment of her person, an instinct common to the sex and in no sense derogatory to character. It was admitted for the purpose of impeaching J. P. Corley, who denied making the statement. The court, in ruling on the admissibility of the evidence as a contradictory statement previously made, expressly stated that it was not admissible to “establish a fact.” That was correct; it was not admissible to prove a fact. Defendant’s counsel contended at the time that it was “irrelevant, immaterial, and without probative value.” The objection was good and should have been sustained. It was, in so far as the record shows, a statement previously made, immaterial to the issue. It was not relevant to the testimony of J. P. Corley or to the case, as contemplated in the Penal Code (1910), § 1052.
Cases may arise where a new trial would not be required because of the above ruling of the trial judge; but in this case, because of its peculiar facts, the ends of justice require another trial. One brother killed another, at the home of their father, where they both resided. There is no denial that the accused, Reuben, killed his brother Paul, by shooting him. There is no escape from the finding that Paul was drunk — so drunk that he was a menace, at the time, to his own wife and child. The only witnesses to the killing were members of the immediate family. The father and stepmother gave evidence exculpating the accused brother, which, if believed, would have entirely justified the killing. On the other hand there was evidence tending to. impeach the father, J. C. Corley, but not as to the stepmother. The only direct evidence as to the killing introduced by the prosecution was the dying declaration of the deceased, who denied that he had assaulted the accused with a knife, as claimed by the defense. The issue of fact is, of course, exclusively for the jury to determine, and their finding is set aside only because of the rulings of the court dealt with above.
Judgment reversed.