178 Ga. 707 | Ga. | 1934
Emmett Gibson and Baider Davis were jointly indicted for tbe murder of Hamp McGee by shooting him with a shotgun. On separate trial Emmett Gibson was convicted and sentenced to be executed. His motion for new trial was overruled, and he excepted. The special grounds of the motion 4 to 10, inclusive, relate to rulings on admissibility of evidence. Ground 11' relates to alleged newly discovered evidence as set forth in an affidavit made by George Ware, a fellow prisoner, as to physical punishment administered by the officers to Emmett Gibson while he was confined in jail; also to alleged newly discovered evidence as set forth in an affidavit made by Baider Davis, also a fellow prisoner in Pulton County jail on April 20, 1933, to the effect that Davis alone committed the homicide, and that he had implicated Emmett Gibson in the’ hope that it<cwould make it better for him;” also that certain written confessions of both affiant and Emmett Gibson were extorted by officers. Ground 12 relates to alleged newly discovered evidence as set forth in an affidavit executed in Baldwin County by Baider Davis at 8:23 a. m. on June 14, 1933, before his execution on that date for murder of a different person, in which affidavit the affiant stated that he alone killed Hamp McGee, and that Emmett Gibson took no part in the commission of the crime; also evidence as to declarations by Baider Davis at different times and up to the moment of his execution, to the effect that he alone committed the murder for which Emmett Gibson had been convicted, and that Gibson had not participated and was innocent of the crime. The only supporting,evidence as to the character of George Ware was an
In the circumstances stated below, it was not erroneous to allow a witness to testify: “I saw a shell out there. . . I saw the officer pick it up, . . a cut shell, . . that is what they call a ringshell, . . it bunches it. . . I never have. . You can cut them in different places,” over the objections (a) that the witness had not qualified as an expert, (b) that it was hearsay. Nor was it erroneous to allow the same witness to testify: “This one was cut, . . about that much of it, from my finger up there. It was all cut around. I did not have that shell. The officers had it,” over the objection that the shell would be the highest and best evidence. The witness also testified that he had had some experience with a shotgun. The shell was later introduced in evidence.
The defendant moved to exclude certain testimony. The court stated, “I overrule the objection for the present. I think you understand what I mean by that ruling.” There was no renewal of the motion. Even if the evidence was objectionable and harmful to the defendant, the failure to renew his motion, or otherwise invoke a ruling on the question of admissibility of the evidence, was a waiver of the grounds of objection. Mitchell v. State, 152 Ga. 375 (9) (109 S. E. 357); Cawthon v. State0, 119 Ga. 395 (7) (46 S. E. 897); Bacon v. Bacon, 161 Ga. 978 (133 S. E. 512); Thompson v. State, 166 Ga. 512 (6) (143 S. E. 896).
Admission of testimony relating to certain empty shotgun shells marked No. 1, No. 10, and No. 11, respectively was objected to on the ground “ there was only one shell found on the premises, and the testimony about any other shells would be inadmissible, irj-gleyant, and highly prejudicial,” The judge admitted the test!
Another witness testified: “I have seen this watch which you show me. Raider Davis had it. He dropped it out of his pocket on the floor of my house; we were having a crap game, a crap game at my house.” The attorney for defendant moved “to rule out what Raider Davis had” at that house, on the ground of irrelevancy and immateriality. Another witness was asked: “What went on that night [the night of the crap game], with reference to a watch?” Objection to the question was interposed, and was overruled. The ground of the motion for a new trial does not disclose the answer to the question. Other evidence tended to show the commission of the homicide by both Gibson and Davis, and that the watch was taken by Emmett Gibson from the body of the deceased
Evidence was introduced by the State, without objection, as to a confession by the defendant, which was corroborated by other evidence as to the crime having been committed, and other evidence corroborating the confession, giving details as to how it was committed. There was also other evidence than the confession, tending to show that the defendant perpetrated the crime. The evidence was sufficient to support the verdict.
There was no compliance with the requirements of the Civil Code, § 6086, in the matter of supporting evidence as to residence, associates, means of knowledge, character, and credibility of George Ware and Raider Davis. If there had been such compliance, in view of the rebutting evidence set forth in the counter-showing made by the State, the alleged newly discovered evidence of those persons would not require the grant of a new trial. It is immaterial to consider whether on another trial the declaration of Raider Davis immediately preceding his execution for a different murder, assuming sole responsibility for the murder in question and entirely exculpating Emmett Gibson, would be admissible under the theory of dying declarations. As to this question see Westberry v. State, 175 Ga. 115 (164 S. E. 905).
The judge did not err in refusing a new trial.
Judgment affirmed.