130 Ga. 294 | Ga. | 1908
(After stating the foregoing facts.)
As a part of the motion for continuance made on May 1, in order to show the existence of conditions unfavorable to the defendant and prejudicial to his case, there is a narrative of what is alleged to have been a sensational scene in the court-house at the time the mistrial was declared; and further there are set out at length certain sensational articles appearing in the newspapers, as well as interviews and statements made by the solicitor-general of the circuit relative to the case and trial, all of which, counsel for movant insisted, rendered it “highly improbable for the defendant at this time to have what the law guarantees to him, a fair and impartial trial.” Another ground of the motion for continuance was that the “defendant’s leading and chief counsel who had the preparation of the case and its management and direction in hand since the appointment and employment of counsel, Judge Myers only being associated with him during the immediate trial of the case, is now physically unable to proceed with another trial of the case at this term of court.” Upon hearing the motion the
What we have said above applies with equal force to the assignments of error in the sixth, seventh, eighth, ninth, and tenth grounds of the motion for a new trial, and renders any extended discussion of the reasons for overruling those grounds unnecessary. Clearly the testimony of the witness Pollard which was excluded was rightly repelled. That testimony, as set forth in the sixth ground of the motion, is as follows: “That said witness, W. H. Pollard, with the witness Emmett McElreath, immediately upon hearing the shots fired, walked around and in front of the house-where the defendant, Lyles, lived, within a minute’s time, and, just as they had passed the gate, heard the exclamation made by the defendant Lyles from his porch, 'My God, my God, come in here; I have shot my wife,’ or, 'Come in here, gentlemen; my God, I have shot my wife,’ and that upon going in and upon the porch and within a half minute’s time that he heard the defendant state that the shooting wa* accidental, in response to a question from witness as to how it occurred.” The exclamation, “My God, my God, come in here; I have shot my wife,” or, “Come in here,, gentlemen; I have shot my wife,” was the same as that to which the witness McElreath proposed to testify, and can not be held to-have been illegally excluded, for the reasons which we have given above. And for stronger reasons, the statement made by the defendant, that “it was accidental,” was objectionable, because it was a mere narrative and a self-serving statement made “in response to a question of the witnbss as to how it occurred.”
Seasons similar to those which we have offered for holding that, the evidence of Pollard and McElreath was inadmissible apply to the r.ulings made by the court upon the admissibility of the testimony of McClelland, Daniel, and Davenport, as set forth in the-eighth, ninth, and tenth grounds of the motion, respectively.
It was further insisted in this same ground of the motion that the court committed error, when, in response to this statement •of the solicitor-general, “I am going to ask permission of your honor to interrogate this witness again, and ask that question; your honor sees I have an unwilling .witness,” he said, “Go ahead and ask the question.” Counsel for the defendant insist that this was er'roneous, “because Hunt was not only a State’s witness, but apparently a most willing witness for the State, and said question, remark, and ruling tended to give undue weight to the evidence of .said witness and to prejudice the defense.” We do not think that the remark or ruling of the court was erroneous for any of the rea■sons assigned. The court made such a disposition of the matter brought to his attention by the question, statement of the solicitor-.general and the objection, as was clearly within his discretion. If the statement made by the solicitor-general had been untrue in point of fact, or if there was any impropriety in it, tending to injure the defendant’s cause, the impropriety might have been pointed out to the court, and no doubt the judge would have removed any hurtful effect of the same by giving to the jury the necessary prophylactic caution.
The defendant by his own statement raises and emphasizes the theory that the killing of his wife was the result of an unfortunate accident unmixed with any evil design or intention. He particularized circumstances to show that he was free from fault, and. his theory was duly submitted to- the jury.
But if we have not correctly construed what the defendant said in his statement, and if under that statement he was entitled to a charge upon the law of involuntary manslaughter in the commission of a lawful act without due caution and circumspection, the failure to charge upon’that subject was not harmful to the accused, because the court summed up the circumstances as they were stated by the accused to have been, and instructed thé jury that if they believed the killing occurred in the manner and under the cir
There were other grounds of the motion which we have not thought it necessary to discuss. In none of them was error upon the part of the trial court made 'to appear.
Judgment affirmed.