140 Ga. 387 | Ga. | 1913
At tbe January term, 1913, of the superior court of Laurens county, A. L. Lynn and Alice Lynn, his wife, were jointly indicted and tried for the murder of F. M. Hightower.. The jury rendered a verdict finding the defendant Alice Lynn not guilty, and the defendant A. L. Lynn guilty, with a recommendation of life imprisonment in the penitentiary. To the judgment of the court overruling his motion for a new trial A. L. Lynn excepted.
1.. One ground 6f the amended motion for a new trial is because the court erred in sustaining a demurrer filed to the challenge to the array, of grand jurors before they had returned a true bill against the defendants. The grand jury by whom the defendant was indicted was drawn at the regular fall term of court, and summoned to appear at the next term, to wit, the January term, when they were impaneled. At that term the defendant was indicted. He challenged the array on the ground that the grand jury was not a legal one. He contended that the provision of the act creating the Dublin circuit (Acts 1911, p. 82), which provides that the grand juries of the counties of that circuit “shall
2. After arraignment, a panel of forty-eight traverse jurors was put upon the defendants, A. L. Lynn and Alice Lynn, and a list of the names of the forty-eight jurors was furnished them, and the court ordered the striking of the jury from the list so furnished. The defendants objected to the ruling of the court that they strike from the list of forty-eight jurors, and demanded a panel of ninety-six jurors to be furnished them before being compelled to commence their strikes. The defendant assigns error on the refusal of the court to furnish a panel of ninety-six jurors, insisting that as there were two defendants on trial jointly, each defendant was (as the court held), entitled to twenty peremptory strikes; and, as the defendants were jointly indicted and jointly on trial, that they were entitled to a panel of ninety-six jurors from which to commence striking, so that each might have his or her twenty peremptory challenges with knowledge of the personnel of
. 4. It was not error to refuse to give the following charge to the jury: “The State is not compelled to show a motive in order to convict of murder, provided either express or implied malice is shown, but there can be no conviction of murder without either the proof of express malice or a presumption from which malice can be implied; for there is no murder without malice, and no malice without motive, and the absence of the proof of motive is a strong circumstance in favor of innocence; and this is especially true where the guilt of the accused is doubtful.” Campbell v. State, 134 Ga. 433 (5), 435 (53 S. E. 914).
5. Error is assigned because the court refused to instruct the jury, as requested by the defendant in writing, as follows: “I also charge you that if you believe that the deceased was attempting to have carnal knowledge of Mrs. A. L. Lynn forcibly and against her will, that her husband A. L. Lynn would have been justified in killing the deceased.” The court did not err in refusing to charge as requested. There was no evidence to authorize the charge, nor was there any evidence to show that any assault had been made upon the defendant, Mrs. A. L. Lynn, or that her husband, A. L. Lynn, had killed the deceased to prevent an assault being made upon his wife. Her statement, not under oath, that
6. The court did not err in refusing a request to charge the jury as follows: “I charge you, gentlemen of the jury, that the testimony of a detective or person interested in the outcome of the ease, or that has any prejudice or bias resting on his mind against the accused, should be scanned with care. A detective or person interested in the outcome of the case is not thereby rendered incompetent from testifying, and no person, no matter • how much they are interested or how strongly they are prejudiced or. how unworthy they are of belief, and [is ?] merely for that reason rendered incompetent as a witness; but their testimony must be admitted, and their truthfulness or untruthfulness is to be determined by the jury.” The competency of testimony is for the court to determine, and the weight to be given it and the credibility of the witnesses is exclusively for the determination of the jury. Calvin v. State, 118 Ga. 73, 75 (44 S. E. 848); Merritt v. State, 107 Ga. 675 (4), 681 (34 S. E. 361); Ryder v. State, 100 Ga. 528 (6), 529 (28 S. E. 246, 38 L. R. A. 721, 62 Am. St. R. 334); Rouse v. State, 135 Ga. 227 (69 S. E. 180).
7. The following charge of the court was not erroneous: “The State contends in this case that there was a conspiracy on the part of the defendants, A. L. Lynn and Alice Lynn, to take the life of the deceased E. M. Hightower. It is for you to determine from the evidence whether or not there was a conspiracy. A conspiracy may be defined as a combination or agreement between two or more persons to do an unlawful act. The existence or non-existence of a conspiracy or common intent may be established by proof of acts and conduct, or by proof of express agreement, if any.
8. The defendant and his wife were jointly indicted for murder. On their trial certain evidence of a detective was offered by the State, which tended to show a confession on their part while they were confined in jail. The witness testified to certain conversations between the husband and wife, secured by means of a dictagraph which had been placed in the cell occupied by them. It is insisted that this evidence was inadmissible, because the testimony of the witness showed that he did not hear all of the conversation, and that a part of their conversation would not be admissible unless all of it was heard by the witness. To the objection
9. The following letter was offered in evidence by the State, and evidence was introduced to prove its execution by the defendants jointly: “Dublin, Ga. Dec. 13th 1912. Uncle Frank High-tower Alonzo and the children is planning to go and getting ready to go to Wilks Co next Tuesday, they will be gone three days you dont know how desolate it is out here when me and the baby is left alone. We cant' all leave on account of our stock. We have plenty of lightwood ready cut. You can come in your wagon every day and get a load. I will give you a good, good good dinner. Please come visit me in my loneliness. You will never regret the time. Alice Lynn E 6 Dublin, Ga.” It was admitted by counsel for the defendants, in open court, that the defendant Alice Lynn wrote a portion of the letter, and owing to her nervous condition her husband, A. L. Lynn, wrote the remainder; but objection was made to its being admitted in evidence on the ground that it was irrelevant and had no bearing one way or the other on the case. We think the letter was admissible as tending to show a conspiracy on the part of Lynn and his wife to have the deceased visit their home for the purpose of murdering him, as contended by the State. This theory was contested by the defendants, and for the purpose indicated it was admissible in evidence.
10. The 16th ground of the motion assigns error because, during the progress of the trial, “and while witnesses were being examined in behalf of the defendant, and, as movant contends, specifically in behalf of himself, that the witness M. H. Blackshear was called to the stand by the defendants for the purpose of proving their good character,’ but said witness, which witness testified as
11. The evidence was sufficient to support the verdict; and none of the assignments of error are such as to require the grant of a new trial.
Judgment affirmed.