57 Ga. App. 895 | Ga. Ct. App. | 1938
The defendant was convicted of involuntary manslaughter in the commission of a lawful act in an unlawful manner, and excepted to the overruling of his motion for new trial.
With reference to special ground 1 there was, as applied to the facts in the instant case, no merit in the exception to the instruction on the subject of impeachment of witnesses. The excerpt read in connection with its context is almost in the identical language approved by this court in Martin, v. State, 42 Ga. App. 591, 592 (157 S. E. 113). Some confusion has arisen in the application of the doctrine of impeachment of witnesses by the incautious use of the term “impeachment,” and treating that term as synonymous with an attack upon the credibility of a witness by way of impeachment. Powell v. State, 101 Ga. 9, 21 (29 S. E.
Special ground 2. The court charged the law on the defendant’s statement and then the law of reasonable doubt, and then, in the subsequent part of its charge and not in immediate connection with the charge on the defendant’s statement, said: “In this connection the court instructs you that a witness may be impeached [stating some of the ways in which a witness might be impeached]. . . After all, gentlemen, it is a question for the jury to determine whether a witness has been impeached, and to determine the credibility of such witness and the weight that his testimony shall receive at the hand of the jury. You are the exclusive judges of the credibility of the witness, just as you are the exclusive judges of the credibility of the defendant’s statement. You are made the exclusive judges of the weight of the testimony sought to be impeached, and you are the exclusive judges of the witnesses who seek to impeach another witness.” The defendant contends that this excerpt of the charge deprived the jury of the right to believe the defendant’s statement in preference to all the testimony in the case if they saw fit to do so, and that it deprived the defendant of the right to have the jury believe his statement without any reference to any evidence of any witness impeached or otherwise in preference to all the testimony in the case. It should be noted, we think, that the judge was not at this time charging generally upon the subject of the defendant’s statement. He had previously done this but he was here charging on the subject of the impeachment of witnesses. ’“‘It has been repeatedly held by this court that it would be better, in charging on the defendant’s statement, to follow the statute and there leave the matter. Morgan v. State, 119 Ga. 566.’” Dunahoo v. State, 46 Ga. App. 310, 312 (167 S. E. 614), and eit. The charge complained of, though not approved of as being apt, does not, we think, constitute reversible error. The excerpt complained of was in no sense contrary to that portion of the charge which gave them the privilege of rejecting the evidence and believing the defendant’s statement. It did not circumscribe or limit the right of the jury to give to the “statement of the defendant such-weight as they thought right and proper,” as had previously been charged (Jones
Special ground 3 complains of an excerpt of the charge, to wit: “But where one is operating his truck over forty miles per hour and it is shown, the law presumes that one intends to do what he did do; the law implies intention when the act is shown.” The defendant contends that this part of the charge was an expression of an opinion that the defendant had been proved to be operating the truck over forty miles per hour. It seems to us that the judge, having previously stated in his charge that to run the truck over forty miles per hour was a violation of the automobile statute of this State, was here, in the excerpt complained of, stating hypothetically that if any one operated a truck at a speed greater than forty miles per hour (not that the defendant had actually so operated his truck), and.it is shown, the jury would be authorized to find certain facts. We do not think that the judge so charged as to intimate his opinion that the accused was guilty of violating the statute by exceeding the speed limit of forty miles per hour. American Surety Co. v. Smith, 55 Ga. App. 633, 639 (191 S. E. 137).
Special ground 4. The court charged: “Involuntary manslaughter shall consist of the killing of a human being without any intention to do so, but in the commission of an unlawful act, or a lawful act which probably might produce such a consequence in an unlawful manner. Provided, that where such killing shall
Taking that view of the evidence which is most unfavorable to the accused, which this court must do in passing upon a motion for new trial, for every presumption and inference is in favor of the verdict (Bell v. State, 21 Ga. App. 788, 95 S. E. 270), we can not say that the jury were not authorized to return a verdict of involuntary manslaughter in the commission of a lawful act where there had not been observed necessary discretion and caution.
Judgment affirmed.