160 Ga. 138 | Ga. | 1925
(After stating the foregoing facts.)
No request was presented to the court that the jury be charged section 73 of the Penal Code, or upon any other feature of the case. While the defendant, if he desired fuller instructions as related to the doctrine of mutual combat, might perhaps properly have requested an amplification of what was said by the court to the jury upon this subject, no reason suggests itself why the giving in charge of section 73, under the evidence in the record, would have been of advantage to the defendant. If for the sake of argument we should concede that the judge did not present the law of voluntary manslaughter as applicable to mutual combat, the provisions of section 73 likely would not have been understood by a jury as having any reference to the offense of voluntary manslaughter, unless the trial judge by additional proper instructions had explained to the jury how the provisions of this section might affect a case of mutual combat, if such appeared from the evidence.
The remaining assignments of error present three questions. Grounds 2, 3, 5, and 6 raise the question as to how far a trial judge is empowered to control the right of the defendant to make just such statement as he sees fit, and whether it is within the power of a trial judge in Georgia to exclude portions of a defendant’s statement because under the rules of evidence they would be irrelevant or immaterial. , The statement of a defendant in a criminal case is an anomaly, unknown to most of the commonwealths of this Union. But it has more than once been decided that the rules of evidence have no application to section 1036 of
In Coxwell v. State, 66 Ga. 309, a case where the judge restricted the prisoner’s statement after the defendant had occupied more than two hours in a rambling narrative, it was held that while the court may so far restrain a prisoner’s statement as to prevent his occupying the time of the court and jury with long, rambling, and irrelevant matters, yet as to all matters connected with the case the prisoner may make such statement as he may think proper, and he should not be restricted to stating such facts as would be admissible in evidence. In the Ooxwell case the trial judge interrupted the prisoner and required that the statement be made under the rules governing the admissibility of evidence. In passing upon this point Judge Crawford, delivering the opinion of this court, said: “The judge confined the prisoner within the limits prescribed for witnesses. This does not meet with the broad and liberal purposes which the legislature intended to accomplish. He is not allowed to come as a witness; he comes as a prisoner, charged with crime; he does not appear to give testimony; he appears to make a statement, — a right far higher than the narrow limits which confine and guard against hearsay and conclusions, and expressly forbids the admissibility from his own witness of that which the party himself may have uttered in his own behalf. In the exercise of this right he is authorized to make such statement in the case as he may deem proper in his defense. It was never contemplated that he should be embarrassed and circumscribed by the strict rules of law which control the admissibility of evidence. Nor, upon the other hand, should he be permitted to occupy the time of the court and jury with long, rambling, irrelevant matter inapplicable to the case, and which, of necessity, must always rest in the sound discretion of the judge. This right granted to the prisoner is a modern innovation upon the criminal jurisprudence of the common law, advancing, to a degree hitherto unknown, the right of the prisoner to give his own narrative of the accusation against him to the jurors, who are permitted to believe it in preference to the sworn testimony of the witnesses. The lawmaking power, having given this right of making his statement to the prisoner, and having authorized the jury to give it such force as they may think proper, makes it the duty of the judges to execute
It matters not that it appears anomalous that a defendant can state that which is irrelevant and that which in law can offer him no just ground of defense. Facts and circumstances wholly disconnected from any legal defense, and which might appeal merely to the sympathy of the jury and offer no reason for an acquittal, might cause a defendant indicted for murder to be recommended to life imprisonment rather than be subjected to capital punishment. Or such facts and circumstances irrelevant as evidence might cause the defendant to be punished as for a misdemeanor, where otherwise punishment would be inflicted as for a felony. Or in case of doubt as to the credibility of the State’s testimony,— the jury having no less the right to consider the appearance and credibility of the defendant than the appearance of the witnesses against him, — the statement of the defendant, his manner of stating it, and the apparent candor of the reasons he might present as to the motives which influenced the act, even though he may overlook or omit any reference to the main charge, and though some of his statements under the rules of evidence might be objectionable as conclusions or hearsay, the statement allowed might create and justify such reasonable doubt of the defendant’s guilt as would authorize an acquittal. In the present case the judge
We are unable to determine, from the assignment of error in regard to the interruption of Mr. John R. Cooper, exactly the scope or nature of the interruption; and in view of this imperfection we make no ruling, but the exception as to the withdrawal of certain portions of the defendant’s statement, upon the ground that as evidence they would be irrelevant, must in our opinion be sustained, and this error requires the grant of a new trial.
There is no merit in the assignment of error as made in the fourth special ground. It is well settled law that one who kills another under the fears of a reasonable man that the injury about to be inflicted upon him is less than a felony may be guilty of voluntary manslaughter. It is assigned as error' that “the defendant was entitled to a more complete and fuller charge on the doctrine of reasonable fears and justifiable homicide.” If more complete instructions on the subject were desired they should have been requested; but aside from that, the assignment of error does not point out how or in what respect the instruction should have been more complete, so as to present anything for decision.
Objection was made to the testimony of Mrs. Black, who testified she had a conversation with the deceased after the shooting, upon the ground that no sufficient foundation had been laid for the admission of the alleged dying declaration the witness was about to repeat. It appears from the brief of evidence that she testified that he was conscious of his condition, and her recital of what he said evidences that this is true. It appears from the record that the deceased died within forty hours after he received three wounds. The physician in attendance upon him testified that the mortal wound was one which entered the hip and the interior of his body. Not only from the statement made by the deceased to his brother a few hours after he was shot, to which reference has been made, but also from the grave character of the wound itself, the jury had the right to infer that his physical condition would apprise him with a consciousness of approaching death. We there
As we feel constrained to grant a new trial upon the ground above stated, we shall not deal with the general grounds of the motion, nor express any opinion upon the evidence.
Judgment reversed.