Ellison v. State

21 Ga. App. 259 | Ga. Ct. App. | 1917

Harwell, J.

(After stating the foregoing facts.)

1. The motion for a new trial complains of the refusal of the court to allow a witness for the State to answer the following question, propounded to him on cross-examination by the defendant’s counsel: “At the time Charles Ellison (the defendant) said he had shot Richard, why did he say he had shot him?” The ground of complaint is that, the State having 'proved by the witness an admission, the defendant was entitled to have the witness give the entire admission and to let it go to the jury in its entirety. Unquestionably, when a confession is given in evidence, it is the right of the defendant to have the whole confession and all the conversation connected therewith. Penal Code (1910), § 1030; Cox v. State, 64 Ga. 375, 414 (37 Am. R. 76), and citations. And it has been held reversible error on the part of the trial judge to admit a part of a defendant’s confession, and exclude the other part. Long v. State, 22 Ga. 40 (1). However, it is equally well established that, “in order for the exclusion of oral testimony to be considered as a ground for a new trial, it must appear that a .pertinent question was asked, and that the court ruled out the answer; and that a statement was made to the court at the time, showing what the answer would be; and that such testimony was material, and would have benefited the complaining party.” Griffin v. Henderson, 117 Ga. 382 (2) (43 S. E. 712); McAllister v. State, 7 Ga. App. 541 (4) (67 S. E. 221). In this case it does not appear what answer the witness would have given to this question. It does not appear that the answer of the witness would have shown that the defendant, when he confessed that he killed the deceased, gave any reason at all for killing him. It does not appear whether, had his statement as to his reason for killing his brother, if made, been admitted, it would have benefited or injured the defendant. This is especially true in view of the fact that it was proved that the defendant made contradictory statements as to his reason for the killing. We are not able to determine whether the answer of this, witness would have shown that the defendant, at the time of his confession, gave a reason for the killing which was consistent Avith his statement on the trial, or would have given still another reason, inconsistent therewith. Hence, we are unable to say that the court committed harmful error in refusing to allow the witness to answer the question propounded to him.

2. One of the grounds of the motion for a new trial is based upon newly discovered evidence of threats made by deceased against the accused prior to the fatal encounter. The deceased-had been overheard to remark that, should the defendant “run up on him” when the deceased was-having improper relations with the defendant’s wife, he (the deceased) would “take a chair or something else and kill him.” This threat was uncommunicated to the defendant prior to the homicide. It will be seen that there is no evidence of an assault made on accused bj the deceased. The evidence for the State makes out a case of killing without justification. It is only in the defendant’s statement that the theory of mutual combat or self-defense arises. Hence the uncommunicated threats made by the deceased would not, under several decisions of the Supreme Court, have been admissible in evidence on the trial of the case, and therefore,- when discovered after trial, are not ground for a new trial. See Vaughn v. State, 88 Ga. 731 (16 S. E. 64); Peterson v. State, 50 Ga. 142; Nix v. State, 120 Ga. 162 (47 S. E. 516); Pride v. State, 133 Ga. 438 (2) (66 S. E. 259).

3. ' The two grounds dealt with above are the only grounds of the motion for a new trial other than the general grounds that the verdict was contrary to the evidence, etc. The evidence authorized the verdict.

Judgment affirmed.

Broyles, P. J., and Bloodworth, J., concur.