65 Ga. 147 | Ga. | 1880
The defendant was indicted for the murder of a child six years old, the little son of his wife,- was found guilty, and excepted. The case was before us at the last- term, when a new trial was granted. - It is now before us again; and the law demands the grant of another new trial.
1. Among the grounds of the motion for the new trial is one that the court erred in charging the jury on the subject of confessions of guilt when there were none. In Dumas vs. The State, decided last term, it was ruled that where the defendant had made no confessions of guilt, and the court charged that confessions of guilt should be
2. As the case must be tried again, we wish to say further that the sayings of the wife of defendant, not in his presence, are clearly inadmissible, as ruled by the presiding judge as we understand his ruling; but we are not .able to discriminate, as the evidence is transmitted to this court in this recbrd, what she said in presence of the defendant and what she said when not in his presence. To •admit them against the defendant, we are clear that they should have Teen said by her in his immediate presence, and where he could distinctly hear all that she said, and not that he should have been in an adjoining room or cell, where he could not hear all and have his direct attention ■drawn to what she said. The principle on which such testimony is admissible at all is, that by not denying or ■explaining what is said in his presence touching a transaction in which he is interested, the party interested acquiesces in the truth of the statement. Before he can be considered as acquiescing by silence he must be where he can hear and understand what is said, and the witness against him must be certain thereby that his attention was arrested by the narrative given of what had occurred in a ■ transaction in which he was an actor.
3. The question as to the name of the child killed was a question for the jury, and whatever name he was generally known by was his proper designation in the indictment, and the evidence is clear that the name set out in.
4. If this child came to his death by being killed by some person, it is a clear case of murder, and manslaughter in any grade or species of it, did not enter into the investigation; and the judge was right not to encumber the case and confuse the issue before the jury by explaining the law of manslaughter and the line of distinction between it and murder.
The questions are but two : First, did this child fall into-the fire accidentally and thus die, or was its life taken by some person ? And second, if .some person killed him, was. the defendant that person ? These questions appear to have been legally and fairly given to the jury without substantial error by which defendant could have been hurt.
We award the new trial because the case of Dumas vs. The State, absolutely covers this on the point of the charge-on the subject of confessions, of guilt, when there is no evidence that the defendant, ever made any confession at all, and because some of the statements of the wife of defendant appear to have been admitted in evidence when they were made not in his presence. If any were made in his presence, those should be admitted on the next trial; all made when he was not presents should be excluded.
We forbear to say anything on the facts of the case, because the new trial should be had, and the verdict rendered free from any intimation of our opinion in regard to the guilt or innocence of the accused.
Judgment reversed.
