60 Ga. App. 138 | Ga. Ct. App. | 1939
Tire accused was convicted of tbe offense of possessing whisky. On the trial he made a statement which contradicted the testimony of the witnesses for the prosecution. The only instruction given to the jury on the statement was as follows: “The defendant' in this case has made to you a statement. He says he is not guilty. He says there was a joint occupancy of this house. You will consider that question; that is, as to whether or not there was joint occupancy. If there was joint occupancy of the house, the presumption that this particular defendant owned and controlled and possessed this liquor would be rebutted. In other words, there would be no presumption whatever, if there was joint occupancy.” The defendant in his statement said that the house where the liquor was found belonged to his wife, denied that he rented the premises, and declared: “I had no property or nothing there, and there was no liquor there, not that I know of anywhere. There was nothing like that around there at all.” The latter part of the statement was in direct conflict with the testimony of the State’s witnesses, and the jury had the right to believe it in preference to such testimony; and the court erred, even in the absence of a request, in failing so to instruct the jury. “In a criminal case, where the accused has exercised his statutory right to make a statement and the statement is contradictory of the testimony of the State’s witness, it is the duty of the trial judge, even in the absence of written request, to instruct the jury that they have the right to believe the statement in preference to the sworn testimony. Burns v. State, 89 Ga. 528 (4) (15 S. E. 748); Doster v. State, 93 Ga. 43 (4) (18 S. E. 997); Fields v. State, 2 Ga. App. 41 (4), 46 (58 S. E. 327).” Rivers v. State, 8 Ga. App. 694 (70 S. E. 47); Roberts v. State, 49 Ga. App. 139 (174 S. E. 358). However, on this question counsel for the defendant in error has cited Bryant v. State, 23 Ga. App. 3 (97 S. E. 271); Wheeless v. State, 92 Ga. 19 (18 S. E. 303), Bray v. State, 69 Ga. 765, and Seyden v. State, 78 Ga. 105 (3). In the Bryant case this court reversed the judgment on the sole ground that the court erred in failing to charge on the defendant’s statement, although no re
In Barfield v. State, 105 Ga. 491 (30 S. E. 743), the court held: “Failure by the judge on the trial of a criminal case to allude in his charge to the statement of the accused Avill not require the granting of a new trial, when there Avas no request to charge upon this subject and the omission lo do so- resulted in no injury to the accused. [Italics ours.] Brassell v. State, 64 Ga. 318; Gray v.
The other alleged errors are not likely to recur on another trial, and are not now passed on. The refusal to grant a new trial was error. Judgment reversed.