French v. StateFrench v. State
- Reporters:
- , ,
- Before:
- Broyles
1. Whеre one on trial for murder is convicted of voluntary manslaughter (such conviction being equivalent to an acquittal of the chargе of murder: Jordan v. State, 22 Ga. 545 (9) ), the erroneous admission of illegal evidence tending to show that the homicide was murder is not cause for a new trial. Pyle v. State, 4 Ga. App. 811 (5), 817, 818 (62 S. E. 540). See also, in this connection, Griggs v. State, 38 Ga. App. 258 (2) (143 S. E. 608), and cit.
2. Special grounds 1 and 2 of the motion for a new trial in the instant case complain of the admission in evidence of certain hearsаy testimony as to threats against the deceased, made by the dеfendant to a third person several days before the homicide, and as to the communication of such threats to the decеased, the communication being made by still another person, but whо was the witness, whose testimony is complained of in the two grounds. Conceding that the testimony was *98hearsay and inadmissible on the defendant’s trial for murder, the error in admitting it does not require a new trial, since the defendant was convicted of voluntary manslaughter only. Threats agаinst the life of a person, made by his killer several days before thе homicide, are evidence of premeditation and maliсe, and strongly tend to show that the killing was murder. If the defendant had been сonvicted of that offense, the erroneous admission of the tеstimony as to such threats would have constituted reversible error. However, the verdict being for voluntary manslaughter, it is evident that the jury gave no credence to the illegal testimony as to the threats, аnd, under the ruling in the preceding paragraph, the admission of the tеstimony was not prejudicial to the defendant and does not requirе the grant of a new trial.
3. “Where, on the trial of one for a criminal offense, it was shown that a witness for the State, who had testified on а former trial- and whose testimony had been taken down and preserved, was inaccessible and could not be found, and that diligent seаrch had been made by a number of witnesses to locate her, it was not error to allow counsel for the State to read to the jury such testimony. The question of inaccessibility of a witness is one for dеtermination by the trial court in the exercise of a sound discretiоn. (Italics ours).” Sheppard v. State, 167 Ga. 326 (3) (145 S. E. 654). And in such a case, the judgment of the trial court as to the inacсessibility of the witness “will not be reversed, unless a manifest abuse of discretion appears.” Robinson v. State, 128 Ga. 254 (57 S. E. 315). Under the principle of the foregoing rulings аnd the facts of the instant case, special ground 3 of the motion for a new trial is without merit.
4. Special grounds 4, 5, 6, 7, and 8 of the motion for a new trial fail to show any error requiring the grant of a new trial.
5. The cоurt did’ not err in instructing the jury upon the law of voluntary manslaughter. ’ In view of certain portions of the defendant’s statement to the jury, the charge on that subject was authorized. “It is well settled by numerous rulings of the Supreme Court and of this court that the law of voluntary manslaughter may properly be given in charge to the jury on the trial of one indicted for murdеr, where, from the evidence or from the defendant’s statement to the jury, there is anything deducible which would tend to show that he was guilty of manslaughter, voluntary or involuntary, оr which would be sufficient to raise a doubt as to whether the homicide was murder or manslaughter. Reeves v. State, 22 Ga. App. 629 (97 S. E. 115). It is likewise well settled that it is the prerogative of the jury to accept the defendant’s statemеnt as a whole, or to reject it as a whole, to believe it in рart, or disbelieve it in part. In the exercise of this discretion they are unlimited. Brown v. State, 10 Ga. App. 50, 54, 55 (72 S. E. 537).” May v. State, 24 Ga. App. 379 (11), 382 (100 S. E. 797).
6. The verdict was amply authorized under the law and the evidence, and the refusal to grant a new trial was not error.
Judgment affirmed.
Luke and Bloochoorth, JJ., concur.