177 Ga. 365 | Ga. | 1933
Bernard alias Bonnie Morris, indicted for the murder of Rob Hix, was tried, convicted with a recommendation to mercy, and sentenced to life imprisonment in the penitentiary. He made a motion for new trial, which was subsequently amended, and upon the overruling of this motion he excepted.
The first ground of the amendment to the motion for new trial is based upon alleged newly discovered evidence. The evidence relied on was given by J. P. Noles and Clifford Scott. They made affidavits to the effect that they were traveling along the road near the point where the shooting occurred, that they saw a difficulty between the decedent and Holloway, and that at the time of the difficulty the defendant, Morris, was walking away, and took no part in the difficulty, and fired neither of the shots from the pistol or gun. In connection with this ground the movant submitted affidavits as to the character of affiants. The State submitted a coun
Special grounds two, three, four, and five are based upon affidavits of three persons, E. C. Sheets, H. E. Sheets, and L. O. Johnson, to the effect that they were in the witness-room during the trial of the case, and heard a conversation between Grady Dennis and Eob Hix, the father of deceased; that they heard Eob Hix tell Dennis that his son, deceased, never did say anything; and that Dennis thereupon told Eob Hix to go back in the court-room and testify that the deceased did make a statement, before he died, “that he was going to die, and that Holloway and Morris shot him, and that they shot him for nothing. The affidavits of these men were contradicted by the affidavit of Dennis, to the effect that no such conversation took place. Moreover, the testimony of these men would be merely impeaching in character, and as such is not sufficient for the grant of a new trial. The judge did not abuse his discretion in refusing to grant a new trial on this ground.
The sixth ground assigns error on the following charge of the court to the jury: “The defendant, gentlemen, in this case says he is not guilty of murder, that he is guilty of no offense. He denies the charge contained in the indictment, and his plea of not guilty puts the burden on the State to prove all these allegations, as I have heretofore charged you. He says, while he was present at the time Eob Hix was shot and killed, that he did not participate in the shooting or the killing, but that the shooting was done by Jim Holloway, and that Jim Holloway shot and killed the deceased; and the defendant says he had nothing to do with it whatever, except he was simply there, and that he did not participate in it and had no part in the shooting and killing of Eob Hix.” The seventh ground.assigns error on the following charge, which immediately followed the charge set out above: “Gentlemen, if that is the truth about it, if you believe under the evidence in this case that is the truth about it, then the defendant, of course, could not be convicted of any offense.” The complaint is that the court did not in connec
The eighth and ninth grounds assign error on the charge of the court on the subject of dying declarations. Bob Hix, the father of the deceased, testified that about thirty minutes before the death of his son the latter made a statement to him, “that he was going to die, and that Morris and Holloway shot him, and that they shot him for nothing.” The court charged the jury: “Gentlemen, in this case certain evidence has been admitted before you, claimed to be dying declarations upon the part of the deceased. I charge you, gentlemen, the law with reference to this is that dying declarations made by a person in the article of death, who is conscious of his condition, as to the cause of his death and the person who killed him, are admissible in evidence in a prosecution for the homicide. So in this, case, gentlemen, although I have admitted certain evidence to go before you, it is- the duty-of the jury to consider whether or not, under the evidence, the deceased, Rob Hix, as a matter of fact, made any declarations.- If he made none, if you should believe that to be true, then the balance of this charge with reference to dying declarations, of course, you would disregard. But, gentlemen, if he made declarations, you can consider whether or not at the time they were made, as to whether or not the deceased, Rob Hix, was in the article of death, whether he was in a dying condition. Then inquire further whether-or not he was conscious of that fact, whether or not he knew he was in a dying condition. If he made any statement, gentlemen, when he-was in a dying condition, and yet he was not conscious he was in a dying condition, then, gentlemen, such
The tenth ground asks a new trial because the court erred, during the trial, in receiving the verdict of guilty against the defendant in his absence, he being incarcerated in jail and his presence not being waived. When the jury reported that they had reached a verdict, this being early in the morning next after the day of the trial, they were brought into court-room. The judge asked if they had reached a verdict, and the foreman stated that they had. The judge then asked counsel for the defendant if they would waive the call of the jury, and they stated they would. The solicitor-general then received, read, and published the verdict. The judge then inquired whether- or not the defendant was in court, and was advised that he was not. The judge then sent an officer to the jail for the defendant, and he was brought into the court within a few minutes. No other business was transacted, and the jury, which had remained in the jury-box, was asked the question if they had reached a verdict, and they stated that they had, and counsel for defendant waived the call of the jury, and the verdict was again read and published by the solicitor-general in the presence of the defendant. • It is insisted by the plaintiff in error that his constitutional right to be present during the trial was violated. It will be
There was evidence to authorize the verdict. The judge did not err in refusing a new trial.
Judgment affirmed.