156 Ga. 176 | Ga. | 1923
Lead Opinion
The defendant made a statement to the jury, in which he told them that he had been drafted into the military service and was sent to France. On his return he found that his wife had been guilty of acts of adultery which had resulted in the birth of a child. Iiis wife told him that the deceased, by persuasion and constant importunities, had induced her to yield to his lustful embraces, in consequence of which she became pregnant and was delivered of a child begotten of her by the deceased. Upon getting this information, he declined to go back to his wife or live with her, and had ever since lived separate and apart from her. On the day of the homicide he and the deceased met; and the latter walked up to him and said: “Eph, how come you didn’t speak to me just now when I spoke to you ? ” The defendant replied: “ I didn’t hear you say anything, and I didn’t say anything to you.” The
The instructions co’mplained of were not erroneous for the reasons assigned by the defendant. In a criminal case the defendant has “ the right to make to the court and jury such statement in the case as he may deem proper in his defense ” (Penal Code (1910), § 1036); and where the defendant in the exercise of this right made a statement to the jury, in which he told them that the deceased had been guilty of acts of adultery with his wife while he
Judgment affirmed.
Dissenting Opinion
dissenting. The defendant (after stating how he returned from France and was discharged ffom the army, re
There are two assignments of error upon which the plaintiff in error is entitled to another trial. The court charged the jury upon an assumed contention of the defendant, which was in fact not one of his contentions; and even though the instruction was abstractly correct as far as it went, it was not sufficiently full to obviate- the injury inflicted upon the defendant by attributing to him a contention which he did not make. In his statement to the jury the defendant recited at some length his assignment to military duty and the effect that this produced upon his crops, and the separation which was thereby brought about between him and his wife; and that when he was discharged from the military service and returned home to find that his wife had become the mother of a bastard child, he declined to live with her; and then he told the jury plainly and distinctly that he did not intend to meet the deceased, that he had no idea of meeting him on the day on which the homicide subsequently occurred; that he was content, and so told the deceased, for the deceased to have his wife. There is not an intimation in' the statement of the defendant nor is there a single fact in all the testimony to suggest that the shooting had any reference to the previous illicit relations between the wife of the soldier husband and her paramour who did not go to the war. There is a statement that the defendant was told by his wife that the deceased was the father of her bastard child; but so far as appears from the record, the husband, far from being vindictive 'or revengeful, conceded the possession of his former wife’s body
This charge injected into the ease a contention and issue not made either by the evidence or the defendant’s statement, with the result that the jury was instructed to find tire defendant guilty if in their opinion there had been sufficient time for reason to reascend its throne after the perpetration of the acts of adultery to which the defendant referred, notwithstanding the fact that no defense was urged for the killing on the ground of adultery, and on the contrary the defendant had stated that he had not lived nor wished to live with his wife for over a year, and that he had told the deceased that he was perfectly welcome to his wife whenever and wherever and so long as he might wish to have to do with her. This instruction was certainly an intimation that the defendant was making an unsuccessful attempt to establish the contention that the killing was justifiable on account of the former acts of adultery on the part of the deceased. As plainly shown by the statement of the accused as well as by the range of the testimony introduced in his behalf, the sole defense of the defendant was based upon the law of self-defense; and it was confusing, misleading, prejudicial, and harmful to the defendant to charge the jury upon a proposition not presented by either the evidence or the statement, and especially to denominate it as a contention- of the
The court also erred in ruling out the evidence of the witness Jim Richardson, that “ I had occasion to arrest Jim Lee Wells pretty soon after the killing, and he had a pistol when I arrested him,” and in withdrawing the same from the consideration of the jury trying the case. This testimony was in line with other testimony already in the record, showing that the deceased had a pistol at the time of the encounter and at the time that he was killed, which was picked up and carried off by Jim Lee Wells after the killing. It was in contradiction of the testimony of the witness Abbie Woolbright, a witness for the State, who swore that Jim Lee Wells had no pistol at the time he went to the shooting and killing; and we fail to see how the learned trial judge could have withdrawn the testimony of Richardson and yet have allowed the testimony directly in conflict therewith, which was adjudged to be material, to remain in the record. The testimony of Richardson was material and relevant, and was a strong circumstance corroborating other testimony in behalf of the defendant to the effect that the deceased had a pistol at the time of the killing, which was picked up by Jim Lee Wells immediately afterwards. This evidence bore out the contention of the defendant and the statements of his witnesses, and impeached the testimony of Abbie Woolbright, a sister of the deceased. Richardson was the arresting officer, and according to his testimony Jim Lee Wells’s possession of a pistol was closely connected in point of time with the killing. The witness says: “ Pretty soon after the killing he had a pistol when I arrested him.” The question as to how closely this possession was connected as to time with the killing was certainly a jury question. The fact that Jim Lee Wells had a pistol immediately after the killing might have substantiated and established the theory and defense of the defendant, especially in view of the fact that one of the witnesses for the State had sworn positively that Jim Lee Wells had no pistol when he came to the scene of the killing.