126 Ga. 109 | Ga. | 1906
There were only two eye-witnesses to the homicide. The State introduced only one of these witnesses. The accused introduced no testimony and went to the jury on his statement. The evidence for the State authorized a verdict for murder. The statement of-the accused, if believed by the jury, might have been the basis of an acquittal. The witness who was not introduced was. subpoenaed by the State, sworn, and sequestered with its witnesses.. It was said in the argument that this witness was also subpoenaed for the accused; but this fact does not appear in the record. Counsel for the accused requested the judge to charge as follows: “It is. claimed by the attorneys for the defendant in their argument that the State had within its power and reach other and better evidence-in its reach and power, and failed to produce these witnesses and this evidence. On this question, I charge you as follows: Where-a party, in this instance the State, has evidence in its power and within its reach by which it may repel a claim or charge and omits-to produce it and having more certain and satisfactory evidence in its power, and relies on that which is of a weaker or inferior nature, a presumption arises that the charge or claim is well founded, but this presumption may be rebutted.” The court declined this request, but charged the jury as follows: “I have been requested to charge upon the presumption arising from the failure to produce
Judgment reversed.