32 S.E.2d 446 | Ga. Ct. App. | 1944
The denial of a new trial was not error.
In his order passing on both motions for a new trial, the judge said:
"Ellie Matthews, the movant in this case, was indicted and tried for murder. On the trial of the case the jury returned a verdict of involuntary manslaughter, which verdict I refused to receive in the view that involuntary manslaughter was not involved. Without any objection the jury was sent back for further consideration of the case and thereupon returned a verdict of voluntary manslaughter, which was received, and the defendant was sentenced accordingly. Then on July 27, 1944, the defendant made a motion for new trial on the general grounds. Thereafter on August 22, 1944, she made another motion for new trial on the general grounds designating the same as a motion for new trial in the case finding her guilty of involuntary manslaughter. Both motions came on for hearing before me in open court on September 9, 1944, when movant amended her first motion by adding several additional grounds for new trial in the case on account of the voluntary-manslaughter verdict. In ground one of the amendment to the first motion movant contends the jury had a right to find her guilty of involuntary manslaughter, that the verdict for involuntary manslaughter was regular, was published, and it was the duty of the court to receive same, and that the refusal of the court to receive such verdict was illegal and prejudicial to her. So we have two motions for new trial growing out of a single trial of the case. One on the general grounds with an amendment complaining of the verdict for voluntary manslaughter, and the other on the general grounds excepting to the verdict for involuntary manslaughter. *798 There has been but one trial. It seems both motions should be considered together. Now upon considering both motions, it is ordered and adjudged:
"1 — That the verdict and sentence for voluntary manslaughter in said case is void. That the same be and it is hereby annulled and set aside.
"2 — That verdict finding defendant guilty of involuntary manslaughter, to wit: `We, the jury, find the defendant Ellie Matthews guilty of involuntary manslaughter, and recommend that she be sentenced for not less than one and not over three years. This 27th day of July, 1944. Lawton Parkerson, Foreman,' be established, received, and entered of record in said case, as the verdict of the jury rendered on the trial of the case; and that the defendant be sentenced accordingly.
"3 — That the motion for new trial be and the same is hereby overruled.
"Irrespective of what I thought at the time of the trial, it appears the jury was authorized to find her guilty of involuntary manslaughter. There is no doubt that she killed her husband with a knife. The homicide was not justifiable. It was unlawful. She stabbed him once only. There is no evidence as to the size of the knife or of any expressed intent on her part to take his life. In her statement she says that she did not intend to kill him. Under the evidence and her statement a verdict of guilty of one of the grades of homicide was demanded. The jury resolved the doubt as to the grade of the offense in her favor. She has no cause to complain. Hence a new trial in the case is hereby refused. In open court, this September 23, 1944."
In Register v. State,
And in Register v. State,
"2. Where one procures from a reviewing court a decision that one verdict purporting to convict him of a crime is void, because *800 a previous verdict convicting him of another offense in the same case was legal and valid and a final termination of the case, he is thereafter estopped from asserting that the first verdict was invalid because not received by the court and recorded on its minutes, or because the court failed to allow the accused time within which to poll the jury."
Under the above-quoted rulings we think that the court properly set aside the verdict of voluntary manslaughter, and properly ordered "that the verdict of involuntary manslaughter be established, received, and entered of record in the case as the verdict of the jury rendered on the trial of the case, and that the defendant be sentenced accordingly." The verdict of involuntary manslaughter was authorized by the evidence and the general grounds of the motion for new trial are without merit.
The evidence set forth in the sole special ground of the motion was objected to by the solicitor-general, but was admitted by the court, and in a colloquy between the court and counsel as to whether the evidence was admissible, the court stated: "I will let it remain in, but if one commits an offense and after it is committed they are sorry, that does not excuse them for doing the crime." In our opinion the comment of the court so made is not cause for a new trial.
Judgment affirmed. MacIntyre and Gardner, JJ., concur.