158 Ga. 321 | Ga. | 1924
Lead Opinion
(After stating the foregoing facts.)
There have been numerous decisions of this court construing § 954 of the Penal Code (1910), which provides that all indictments shall be deemed sufficiently technical if in the language of the code and where the offense is so plainly charged that the jury may easily understand the nature of the offense charged, to the effect that each defendant is entitled to be sufficiently informed of the nature of the charge against him as to be enabled to prepare his defense (e. g. Johnson v. State, 90 Ga. 441, 16 S. E. 92); and inasmuch as the indictment now before us merely sets forth more
Passing from the general grounds of the motion for a new trial for reasons which are apparent from the opinion, we come to consider the amendment to the motion. In the first ground error is assigned upon the overruling of the demurrer which has already been considered upon the assignment of error upon the exceptions pendente lite. But for these exceptions the overruling of the demurrer could not be considered here. Rulings upon pleadings do not afford a pr'oper ground for a motion for a new trial, Judge Bleckley having facetiously remarked that this principle is so hoary with age that he bowed to it reverently.
The second, third, and fourth grounds of the amended motion each presents in a different form the 'question whether Georgia Grier was competent to testify for or against the defendant, her husband, he not being on trial for an offense committed or attempted to have been committed on her person. The court permitted Georgia Grier, over the objection of the defendant, to testify that her husband shot at her with an automatic pistol twice. “This is the pistol. I had done nothing to cause him to shoot at me. He missed me when he shot. I was sitting in the corner by the dresser, when he said to stand out, that he was going to kill me. I said, ‘Don’t kill me;’ then he pushed me and said to get back, he was going to shoot me. He didn’t say why he was going to shoot me. He pushed me back and shot twice. My baby, K. C. Grier, was in my arias. This was in Monroe County.” In the ruling upon the demurrer the court had necessarily adjudged that the defendant was on trial for the murder of K. C. Grier, and for that reason we think that Georgia Grier, the wife of the defendant, was wholly incompetent to testify in the case to any fact or circumstance either for or against her husband. As we under-
From the history of the legislation upon this particular subject it would seem to be the well-established policy of this State that the wife shall not be permitted to testify against the husband in any trial in which the crime charged was not one committed upon her person. Consequently, while the wife in the present case would be a competent witness to testify to the offense of assault with intent to murder committed upon her person, if such be the truth of the case, she is not competent to testify to the offense of murder committed upon another, even though in the commission of that offense another and a different offense was committed upon her person. It must be remembered that the wife is not permitted to testify at all except as a matter of exception to the general rule; and the provision for her testifying, being an exception, cannot be liberally extended and must be strictly construed. In Bassett v. United States, 137 U. S. 496 (11 Sup. Ct. 165, 34 L. ed. 763), the Supreme Court had before it the question whether a wife was a competent witness against her husband on trial under .an indictment charging polygamy. Naturally, as stated by the court, the polygamous relation of the husband is most obnoxious to a wife and humiliating and injurious to her peace and happiness; but the judgment of the Supreme Court of Utah was reversed because the wife was held not competent, because, under a statute similar to our own, the crime was not one committed against the person of the wife. In delivering the opinion of the court, Mr. Justice
Does the language of our statute demand a construction that the injury to the feelings of a mother in the murder of her child will authorize a stretch of the provisions of § 1037 (4) of the Penal Code, permitting the wife to testify as to crimes committed upon her person, so as to include the killing of her child, a baby in her arms? We think not. In the Bassett cáse, supra, Mr.
The precise point here involved does not appear to have been heretofore presented to this court, but such general principles as those adverted to in the opinion of Mr. Justice McLean, supra, and that exceptions to general rules must be confined within their express limits, have always been recognized here; and therefore we are convinced that the decision of the Supreme Court of West Virginia upon a case almost identical as to its facts with that now before us correctly states the rule. In State v. Woodrow, 58 W. Va. 527 (52 S. E. 545, 2 L. R. A. (N. S.) 862, 112 Am. St. R. 1001, 6 Ann. Cas. 180), the court held: “A wife is not a competent witness against her husband in a prosecution against him for the murder of his infant child of the age of fourteen months, though the same pistol ball killed the child and wounded the wife while the child was in her arms.” In the opinion delivered by Brannon, P., many authorities are cited showing that the bulk of American decisions is to the effect that to place the wife within the exception which will permit her to testify against hex husband the case must be one of personal violence to, the spouse. “The act must touch her person, or her personal individual right, as a person distinct and individualized from the balance of the community, to come under the exception spoken of. An enormous
■ We think the error in the admission of this testimony requires the grant of a new trial.
As qualified by the note of the presiding judge there is no merit in the assignment of error in the fifth, sixth, and seventh
The defendant objected to the admission in evidence of the petition for divorce by his wife against him, on the ground that “it does not illustrate the issues in this case, and is incompetent to impeach the statements of the defendant.” The petition for divorce is not set out in extenso, nor is the substance thereof stated in the ground of the motion which complains of its admission. A ground of a motion for a new trial complaining of the admission of documentary evidence cannot be considered unless the same is set forth either literally or in substance in the motion itself or is attached thereto as an exhibit. Norred v. State, 127 Ga. 347 (56 S. E. 464); Walton v. Busby, 147 Ga. 487 (94 S. E. 563).
Since we hold that the wife is not competent to testify against her husband where the essence of the crime with which he stands charged is an injury to the person of some one other than the wife, the court erred in charging as complained in the tenth ground of the amended motion. In this instruction, as .it will be found in the statement of facts, the court in effect instructed the jury that the testimony elicited from Georgia Grier, the wjfe, was competent, merely calling their attention to the fact that the consideration of her testimony was “limited to the determination of the issue made by the indictment, wherein it charges that the homicide of K. C. Grier was the result of the alleged unlawful intention to kill'and from an assault made by the defendant upon his wife (if you find that any such assault was made).” We fail to understand the limitation imposed by the court, and doubt if the jury clearly understood it. How the assault made by the defendant upon his wife was to indicate an unlawful intention to kill K. C. Grier; but however that may be, the defendant was not on trial for any offense committed or attempted to have been committed upon her person, and the Avife was in no sense a competent witness to testify against him; and therefore the instruction incorrectly stated the law applicable to the case.
Judgment reversed.
Dissenting Opinion
dissenting. I dissent from the ruling of the court set out in the second headnote and corresponding diidsion of the opinion. The serious and controlling- question in this case is
Under the section of the Penal Code above cited, the wife is competent “to testify against her husband upon his trial for any criminal offense committed, or attempted to have been committed, upon her person.” If the husband attempts to commit a felonious and malicious assault upon his wife by shooting at her and misses his mark and kills their infant child, can the wife testify against him, as to the assault upon her, on his trial for the homicide of their child? It is insisted that she is incompetent, because the husband is on trial for the homicide of the child, and not for the felonious and malicious assault upon his wife. In support of this proposition counsel for the defendant rely upon the ease of State v. Woodrow, 58 W. Va. 527 (supra). The majority opinion in that ease holds that the wife, under the identical state of facts involved in the instant ease, was incompetent to testify against the husband. This ruling was put upon the ground that the prisoner’s act of shooting the child was not a crime against the wife, that it was not violence against her person, and that it has to be such to bring the wife within the exception to the rule which renders her incompetent to testify against her husband. This ruling would be well founded if the husband kills his child independently of any assault upon his wife. The flaw in the argument to support the ruling in the Woodrow' case is, that it assumes that the act of