154 Ga. 117 | Ga. | 1922
(After stating the foregoing facts.)
If the possession of whisky by the defendant at the time and place of this killing had been brought out by the State, this contention of the defendant would be stronger. The fact that he had whisky on this occasion was voluntarily brought out by his counsel on the cross-examination of the only eye-witness of this homicide, and in the defendant’s statement to the jury. It only appeared from the evidence of the State that this witness smelt the odor of whisky on the person of the defendant. The State
The superior courts of this State may grant new trials where material evidence may be illegally admitted or illegally withheld from the jury against the demand of the applicant. Penal Code, § 1086. Under this section the grant of a new trial is not necessarily demanded by the rejection of competent evidence. When the rejected evidence relates to the main transaction, and tends to sustain the defense set up by the defendant, the rejection of such evidence would require the grant of a new trial; but when it relates to some collateral matter, and the evidence touching the main transaction makes a clear case of guilt, the rejection of evidence bearing on such collateral matter, although competent and relevant, does not in all cases require the grant of a new trial. So the refusal of the court to continue the case for the purpose of permitting the defendant to obtain the testimony of an absent witness on some collateral matter, which does not bear upon the main transaction, would not require the grant of a new trial, where the guilt of the accused is clearly and satisfactorily established. Where guilt is clearly established slight error in the exclusion of evidence does not require the grant of a new trial. Stephens v. Crawford, 1 Ga. 574 (44 Am. D. 680); Bird v. State, 14 Ga. 43 (4); Jordan v. Pollock, 14 Ga. 145; Hagar v. State, 71 Ga. 164, 167.
Even in the case of capital punishment a new trial will not be granted, though some relevant and competent evidence was excluded on the trial, if it be perfectly clear, beyond all doubt, that the conviction and punishment would be no less rightful with the
The undisputed evidence in the present case makes out a clear case of murder. In the statement of the defendant alone is the killing justified. Would the verdict have been different if the absent physician had been present and had sworn that he had advised the defendant to furnish his wife with whisky when suffering from her menstruation? We do not think it would. If the evidence for the State is to be believed, and that was a matter for the jury, the State made out a ease, and the proof expected from the absent physician would furnish no ground for a different verdict. So while we think the evidence of this witness was competent and admissible, we do not think the refusal of the court to continue the case for the purpose of procuring this testimony furnishes a ground for the grant of a new trial.
This declaration was not a mere conclusion or opinion. Whether the defendant had to shoot the deceased was a question of fact. The admission of this testimony falls within the principle ruled in Darby v. State, 79 Ga. 63 (3 S. E. 663), wherein the declaration, “ He cut me, and I done nothing to cause it,” was let in; White v. State, 100 Ga. 659 (28 S. E. 423), wherein the statement “shot me like a dog” was admitted; McMillan v. State, 128 Ga. 25 (57 S. E. 309), where the statement “shot me for nothing without any cause” was admitted, and Washington v. State, 137 Ga. 218 (73 S. E. 512), where the declaration “shot me for nothing ” was admitted. The case at bar can not be differentiated from these cases.
Judgment affirmed.