158 Ga. 697 | Ga. | 1924
Lead Opinion
1. Where the accused was upon trial under an indictment charging him with the murder of his wife, the jury having authority, in case of a conviction, to find him guilty without a recommendation to mercy, or to recommend him to life imprisonment (Penal Code (1910), §63), it was competent to introduce evidence tending to show that at the time of the homicide the woman was in an advanced and apparent state of pregnancy, as bearing upon the enormity of the offense and furnishing ground for the consideration of the jury in determining whether or not a recommendation to life imprisonment would
2. At the trial, in October, 1923, of a defendant for murder of his wife, under an indictment alleging that the homicide was committed on May 11, 1923, by striking the victim “with a certain gun, pistol, and heavy blunt instrument to the grand jury unknown,” the homicide was proved by uncontradicted evidence, but the identity of the person who committed the crime was a question for determination which depended entirely on circumstantial evidence. A brother of the deceased testified, as a witness for the State, that “about five or six years ago he talked with the defendant “after a row they [defendant and his wife] had.” Witness asked defendant “what made him treat my sister so,” to which defendant replied that “at times he would get fretted;” whereupon witness said, “There is no use of that; some time ago you broke her arm, and Dr. Riley treated her.” The witness did not testify that the defendant stood mute, or-that he did not deny the charge that he had broken his wife’s arm. Held: (a) The language of the witness should not be construed as testimony that the defendant in fact broke his wife’s arm, or as testimony of an admission by the defendant that he broke his wife’s arm. Before testimony of the character mentioned could be treated as testimony of an admission by the defendant, it would be incumbent on the State, offering it as an admission, to show affirmatively that at the time the defendant was so charged -by the witness, he stood mute or failed to deny the charge, (b) The language of the witness amounted to testimony that at an undesignated time prior to “five or six years” before the trial, the defendant and his wife had “a row.”
3. Another witness (a physician) was asked, on direct examination: “Did you ever attend her before for anything she had received from her husband?” The witness answered: “Two years ago her father brought her up to me; there was a wound under her arm caused by a lick from some instrument; if there were any other scars on her they were some old sears — in my opinion as a physician caused by a lick.” On cross-examination the witness testified: “I don’t have any idea how these wounds were caused, of my own knowledge.” Held, that the language of this witness should not be construed as testimony that the defendant inflicted the wound that was examined by the witness, or caused any old sears on the person of the woman.
4. There was no other evidence tending to show that the defendant inflicted the wound or scars as referred to in the preceding note. In these circumstances the testimony to which reference was made did not tend to show ill-treatment of the woman by the defendant.
5. Other testimony was to the effect that on the night of the homicide the wife, being in an advanced stage of pregnancy, was left with her small children at home by the defendant, who went off to a party, and that before leaving they had “a fuss” — “some words” about his going. In the case of Horton v. State, 110 Ga. 739 (35 S. E. 659), this court ruled: “It is not, in a trial for murder, competent to prove that, years before the homicide, there had been a difficulty or quarrel between the accused and the deceased, without showing that in consequence thereof the former had continuously entertained hostile feelings towards the
(b) The case differs on its facts from the decisions of Shaw v. State, 60 Ga. 246, and Roberts v. State, 123 Ga. 146 (51 S. E. 374). In neither of those cases were difficulties involved in which both parties participated and either might have been at fault. In both cases it affirmatively appeared what the transaction was, so that its relevancy to the question at issue might be determined. In the former case the testimony objected to related to declarations by the husband, four years before the homicide, that he had beaten his wife and thought he had a right to beat her. There was other testimony tending to show that the woman was killed by being beaten with a lightwood knot. The testimony was held to be admissible as tending to identify the murderer. In the latter case the evidence objected to tended to show a long "course of ill-treatment and cruelty on the part of the husband towards the wife, continuing until shortly before the homicide. This was held to be admissible as tending to show malice and motive, and to rebut the presumed improbability of a husband murdering his wife. In the case under consideration the. evidence objected to was not shown to be acts of cruelty or ill-treatment upon the part of the husband towards the wife, and nothing was shown as to the character of the “row” or “fuss” between the husband and wife, so that it could be determined that those transactions had any relevancy on the questions at issue.
6. On its facts the evidence did not make a strong ease for conviction, and the error in admitting the testimony as to the previous difficulties referred to in the preceding notes is cause for reversal of the judgment refusing a new trial.
Judgment reversed.
Dissenting Opinion
dissenting. The decision of the majority of the members of this court is based upon the admission of certain evidence dealt with in headnotes 2, 3, and 5. The sole ground of objection to this testimony as to previous rows and fusses between the defendant and his deceased wife is that this testimony.was irrelevant and immaterial. “In cases o£ uxoricide the previous relations of the husband and wife and a course of treatment by one towards the other may be shown.” Such evidence tends to show malice and motive and to rebut the presumed improbability of a husband murdering his wife. Roberts v. State, 123 Ga. 146 (51 S. E. 374); Lindsey v. State, 145 Ga. 9 (88 S. E. 202). As against the objection that it was irrelevant and immaterial, this evidence was properly admitted by the court. The fact that there might be other valid grounds of objection to its admission, which were not urged at the time the evidence was admitted, and on which the trial judge did not pass, does not afford ground for reversal of the judgment of the lower court. This court must deal with objections urged against the admissibility of the evidence in 'determining whether such evidence was properly or improperly admitted. ' For the above reasons, I cannot concur in the opinion of the majority.