162 Ga. 178 | Ga. | 1926
1. A witness is always presumed to be competent. Adams v. Barrett, 3 Ga. 277.
2. When a witness is objected to on the ground that he is incompetent
3. If, upon the preliminary examination, the witness appears to be competent, he should be permitted to testify; but if from the evidence his competency is doubtful, his competency depending upon a question of fact, and the court submits to the jury the determination of such fact, the jury should be instructed to determine this question of fact, and, if they should find the witness to be incompetent, not to consider his testimony. Dowdy v. Watson, supra.
4. There was evidence sufficient to support the preliminary finding of the trial judge that Julia McICennie was not the wife of the defendant, and that she was not incompetent to testify against him on the ground that she was his wife; and the court was authorized under the evidence to submit to the jury the question whether this witness was the wife vel non of the defendant, and to instruct them, if they found she was his wife, that they should disregard her testimony in passing upon his innocence or guilt.
5. The court charged the jury as follows: “Now in considering the question of the common-law wife, I charge you this law: If a woman cohabits with a man under promise to marry her legally, but, finding he does not take legal steps to do so, quits him and again cohabits with him, she is not his wife, and is a competent witness on his trial for crime.” The defendant excepts to this charge, on the ground that it is without evidence to support it. This exception is well taken. Held:
(a) A charge to the jury which is not authorized by the evidence, and which is calculated to mislead and confuse the jury, requires a new trial. Southern Marble Co. v. Pinyon, 144 Ga. 259 (2) (86 S. E. 1086); Betts v. State, 157 Ga. 844 (3) (122 S. E. 551).
(b) The question whether Julia McKennie, a witness for the State, was the wife vel non of the defendant, being a close one, under the evidence, the above instruction on this issue was calculated to mislead the jury and was harmful to the defendant. This misdirection requires the grant of a new trial.
6. Sephus Collins, a witness for the defendant, testified- as follows, on his direct examination: “These people lived on my place when Williams got killed. About ten o’clock that night Henry came up to my house about 350 yards, and stayed there about ten minutes and went back, and I never saw him any more until the following Saturday, when he came back with a wagon and said he came after his things; and I asked him what he killed that negro for, and he says, ‘When I went back from your house last Monday night and went in the house, they had made them a mattress down on the floor, and when I walked in they was lying together, and I just couldn’t stand it and I picked up the ax and hit him.’ When he was at my house that Monday night he appeared like he tisually does; appeared to be all right. I had been off that evening, and when he came up and asked Mrs. Collins if I had come back, and she told him that I had, and I heard him say, ‘You tell Mr. Sephus I want him to come down there in the morning and run that negro off.’ ‘If I had my gun, one or the other
7. Applying the principles ruled in the 5th and 6th headnotes above, a new trial should be granted.
Judgment reversed.