39 Ga. App. 829 | Ga. Ct. App. | 1929
Isham O’Quinn and his wife, Mrs. Bertha O’Quinn, were jointly charged with the offense of riot, and were jointly tried and convicted. They demurred to the accusation, and, on the overruling of the demurrer, liled exceptions pendente lite. In their bill of exceptions they assign error on the overruling of the demurrer, and on the overruling of their motion for a new trial.
The accusation was sufficient to withstand the demurrer.
The substance of the testimony is that Isham 0’Quinn went to the home of Miss Annie Laurie Pleape, who was living at the home of Mr. and Mrs. Lightsey? and demanded that she pay him
There is no merit in the general grounds of the motion for a new trial. According to the testimony, Isham O’Quinn said he was going to get his wife and have her beat hell out of the prosecutrix, and he did go and get her, and refused, upon request, to take her away, and took the baby from her and told her to go ahead. Mrs. O’Quinn did “go ahead,” according to the evidence. “If two or more persons do an unlawful act of violence, or any other act in a violent and tumultuous manner, they shall be guilty of a riot.” Penal Code (1910), § 360. And “all persons connected with and sharing in the common purpose of the assembly were guilty of riot, whether their conduct was violent and tumultuous or not.” Green v. State, 109 Ga. 536 (2) (35 S. E. 97). (Italics ours.)
The first special ground of the motion for a new trial alleges that the defendants were tried jointly; that under the act creating the city court of Baxley, as amended, the defendant has four strikes and the State two; that movants contended that they were entitled to four strikes or challenges each, giving them together eight strikes; that the court ruled that the defendants were not each entitled to four strikes, but together were entitled to four strikes; and that this
The second special ground of the motion alleges that the court erred in permitting the prosecutrix to testify over objection of the defendant Bertha O’Quinn, that Isham O’Quinn went to the'residence of the prosecutrix, made demand upon her for
The third special ground of the motion for a new trial alleges error because the court “instructed the jury that they should consider the statement of Mrs. O’Quinn as to herself only, and not as to the guilt or innocence of her codefendant, Isham O’Quinn.” There was no error in this charge. Under the law a defendant has the right to make to the court and jury “such statement as he deems proper in his own defense.” “The right of the accused to make to the jury a statement in his defense is strictly a personal privilege.” Brown v. State, 10 Ga. App. 50 (5) (72 S. E. 537). The statement of Mrs. O’Quinn'was not evidence, and there is no provision of law by which she might become a witness. Roberson v. State, 12 Ga. App. 102 (2) (76 S. E. 752). In this case the defendants were man and wife; but even “on the trial of several persons jointly indicted for murder, the statement of one of them in his own defense, not under oath, can not be considered in determining the guilt or innocence of the other defendants.” Berry v. State, 122 Ga. 429 (50 S. E. 345). Under this charge that the jury could consider the statement of Mrs. O’Quinn as to herself only, and not as to the guilt or innocence of her codefendant, the jury could consider everything in Mrs. O’Quinn’s statement so far as it affected her guilt or innocence. If she stated that her husband had no part in the alleged riot, and that therefore she was innocent of the charge, because it took at least two to commit the offense of riot, the jury could have considered this statement so far as it affected her, and could have concluded that she was not guilty, because no one participated with her, and the crime charged was not proved. This is true even though the acquittal of either of the defendants would result in the acquittal of the other. The
The evidence authorized the verdict, which has the approval of the trial judge, and for no reason pointed out in the record did the court err in overruling the motion for a new trial.
Judgment affirmed.