Gower v. State, No. 6586

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No. 6586 | Ga. | Jun 12, 1928

Gilbert, J.

1. “The time to be allowed counsel to prepare for trial is in the sound discretion of the trial judge; and his discretion will not be interfered with by this court, unless abused.” Kelloy v. State, 151 Ga. 551 (107 S.E. 488" court="Ga." date_filed="1921-05-13" href="https://app.midpage.ai/document/kelloy-v-state-5583561?utm_source=webapp" opinion_id="5583561">107 S. E. 488) ; Ivey v. State, 154 Ga. 63 (113 S.E. 175" court="Ga." date_filed="1922-08-17" href="https://app.midpage.ai/document/ivey-v-state-5584101?utm_source=webapp" opinion_id="5584101">113 S. E. 175). In this ease no abuse is shown.

2. None of the grounds of the motion for a new trial which complain of the admission of evidence, or the refusal to rule out evidence, show error.

3. Movant complains that the verdict is not supported by evidence; that the only evidence connecting the accused with the crime was that of an accomplice. Two witnesses gave direct evidence sufficient to support the verdict. Both swore that movant was a principal in the crime. One was jointly indicted with movant; both admitted their presence. Bach of these witnesses denied participation, and each swore that the other participated with movant in the homicide. The court properly submitted as an issue to the jury whether either of these witnesses was an accomplice. Mere presence at the scene of a crime does not require a finding that one is a principal. Participation in the intent and the criminal act is essential to make one an accomplice. Lowery v. State, 72 Ga. 649; Allen v. State, 74 Ga. 769; Springer v. State, 102 Ga. 447, 451 (30 S.E. 971" court="Ga." date_filed="1897-07-28" href="https://app.midpage.ai/document/springer-v-state-5567797?utm_source=webapp" opinion_id="5567797">30 S. E. 971) ; Walker v. State, 118 Ga. 757 (45 S.E. 608" court="Ga." date_filed="1903-10-24" href="https://app.midpage.ai/document/walker-v-state-5572830?utm_source=webapp" opinion_id="5572830">45 S. E. 608). Compare Fudge v. State, 148 Ga. 149 (2) (95 S.E. 980" court="Ga." date_filed="1918-05-16" href="https://app.midpage.ai/document/davis-v-freeman-5582242?utm_source=webapp" opinion_id="5582242">95 S. E. 980).

4. “Where the sequestration of the witnesses has been ordered by the court, and in violation of the court’s order a witness remains in court and hears the testimony of the other witnesses, this does not disqualify the witness, and render him incompetent. It may subject the witness to attachment and punishment for contempt.” Wallace v. Mize, 153 Ga. 374, 388 (112 1. E. 724), and cit. The court did not err in the instructions to the jury on this subject..

5. The ground of the motion which complains that it was, “the duty of the court” to declare a mistrial on account of the argument of the solicitor-general, even if otherwise meritorious, does not show error, because there was no motion for such mistrial.

6. One ground of the motion is as follows; “Movant contends that the court erred in charging the jury as follows; ‘And if you should further believe that at the time of the killing the defendant, Sam Gower, was in no danger whatever from the person killed, and that the deceased was not committing or attempting to commit any assault upon him whatsoever, that the circumstances were not sufficient to excite the fears *501of a reasonable man that the deceased either intended or endeavored, or was about to commit a serious personal injury at all upon the person of the defendant, but that the killing was without justification or mitigation, and as charged in the bill of indictment, then in that event it would be your duty to find the defendant guilty of murder.’ Movant contends that such charge was error, because: (a) It was not adjusted to the plea of the defendant, which was alibi; (b) it was confusing to the jury, in that it placed before them matters and things to decide that were not necessary to the issue made by defendant’s plea; (c) that said charge was an expression of an opinion by the court of the evidence, in that it presupposed that Sam Gower was at the Bennefield home and. did the killing. Said charge likewise amounted to the court saying to the jury: ‘I don’t believe the alibi defense theory set up; this man was at Bennefield’s home and did the killing.’ ” This ground is without merit. The excerpt, considered in connection with 'the entire charge, is not subject to the criticism made. The court gave instructions on the law of alibi, on which no error is assigned.

No. 6586. June 12, 1928.

7. A number of affidavits are brought up, attached to the record. They are impeaching in character as to unimportant details of the evidence. They are not made a part of the motion for a new trial, and can not be considered.

S. The verdict is supported by evidence.

Judgment affirmed.

All the Justices concur. J. Mallory Hunl, for plaintiff in error. George M. Napier, aitorney-general, Pemberton Cooley, solicitor-general, and T. R. Gress, assistant attorney-general, contra.