223 Ga. 364 | Ga. | 1967
Harry Lee Farmer was convicted of murder with a recommendation of mercy. Thereafter, his amended motion for new trial was overruled and the present appeal filed.
It is well settled that generally the trial court’s discretion in refusing or granting a continuance will not be disturbed. Daniels v. State, 219 Ga. 381 (133 SE2d 357); Foster v. State, 213 Ga. 601 (100 SE2d 426). The gist of the appellant’s complaint was that the “cause of death” would be proven later in the trial rather than first. This question deals with the order of admission of evidence which again is in the sound discretion of the trial court and the trial court’s discretion will not be controlled in the absence of injury to the defendant. See Williams v. State, 60 Ga. 367 (27 AR 412); Glasco v. State, 137 Ga. 336 (3) (73 SE 578). In the case sub judiee the medical expert testified before the State rested its case and no injury is shown by the refusal of the court to grant the defendant’s motion for a continuance.
The second enumeration of error complains of an excerpt from the charge wherein the trial court instructed the jury to reconcile any conflicts in the testimony in the case so as to impute perjury to no one if possible and if not possible to believe that which is more reasonable and probable, that the jury is the exclusive judge of the credibility of the witnesses. The charge complained of states a correct proposition of law. Stuckey v. State, 213 Ga. 525, 527 (100 SE2d 189). The court also properly instructed the jury that it could believe the defendant’s unsworn statement in preference to the sworn testimony in the case. Thus the complaint that the charge was error because it failed to reconcile two conflicting charges is without merit. Cases exemplified by Morris v. Warlick, 118 Ga. 421 (2) (45 SE 407), where conflicting charges were given the jury without explanation or withdrawal of the one are not applicable to the present case where the charges given were not in conflict, were both correct principles of law and both applicable to the questions presented to the jury for decision.
The third enumeration of error complains of the follow
The defendant enumerates as error the failure of the trial court to charge without request the law of involuntary manslaughter. The State’s evidence showed an attack by the defendant upon the deceased and a continuance of such attack while the deceased was begging the defendant not to hit her again, that after such beating, when a police officer arrived, the defendant placed the victim in his automobile and fled the scene, that thereafter he removed the victim from his automobile and left her unconscious in a field and continued to flee on foot. The defendant in his unsworn statement denied that any attack was made by him and contended the assault was made by a third person present at such time, but he admitted in such statement that he helped put the victim in his automobile and drove to the place where he abandoned his automobile and fled on foot.
Under such facts involuntary manslaughter was not involved in the case. The State’s evidence made a case of murder. See Wiggins v. State, 221 Ga. 609 (146 SE2d 294), a case where the victim died as the result of a severe beating administered by the defendant without the aid of any weapons other than his hands and fists, and it was held the conviction of murder was authorized without express evidence of intent because: “The law presumes every homicide to be malicious until the contrary appears from facts or circumstances showing excuse or justification. Weatherby v. State, 213 Ga. 188 (2) (97 SE2d 698).” On the contrary, the defendant’s statement showed him not to be
The fifth enumeration of error complains that the trial court erred in failing to charge the jury to disregard evidence ruled out on objection of the defendant. This contention is without merit. See Annunciatio v. State, 176 Ga. 787 (2) (169 SE 3); Starr v. State, 209 Ga. 258 (3) (71 SE2d 654).
The sole remaining enumeration of error complains that the trial court erred in overruling a ground of the defendant’s motion for new trial which complained of perjured testimony being introduced on the trial of the case. In the absence of a conviction of the witness for perjury this ground is without merit. Code § 110-706; Wilson v. Brown, 218 Ga. 724 (4) (129 SE2d 918).
Judgment affirmed.