Scruggs v. StateScruggs v. State
Thе evidence in the case was without conflict that therе was no bad feeling between defendant and deceаsed prior to the killing. Defendant and his family lived something like three-quarters of a mile away, and the evidence shows friendly аnd frequent exchange of visits, and no one testified to any сircumstánee of prior ill will. It was not competent on that issue to show that defendant-had contributed to the support of the family of the mother of deceased, of which he wаs a member, also several sisters, though the father of deceased was dead and • defendant’s .wife was also a sister.
While there was no exception -to that part of thе general charge which instructed the jury that they may considеr the fact that the witness was the defendant in..weighing his testimony, the сharge was wholly free from error. Tillis v. State,
This court has recently reviewed the authorities upon the subject of the right of a person to defend himself, without retreating, when there was actual imminent peril of losing his life or of serious bodily harm frоm an assault by' deceased, which was unprovoked and mаnifestly murderous in character, and deceased was then in the .act of effectuating his murderous purpose by the use of a deadly weapon. The ease of Storey v. Stаte,
Rеfused charges 5, 7, 8, 9, and 12 all leave out some of the elements required by the rule which exempts the defendant from the duty to retreat.
The other refused charges were either embraced in the oral or some other given charge, or were clearly contrary to some well-established principle, and we do not think it necessary to discuss them.
The newly discovered evidence in one aspect related to the physical appearance of thе wound on deceased, to show that it was larger in the reаr than in the front of his ieg, as evidence of the fact that thе charge ■of shot entered in front, causing a smaller wound thеre, than in the rear. We have carefully considered аll the affidavits, and do not think they show that defendant, or some one for him, used sufficient diligence in this respect. That he was in jail does not justify such failure of diligence. The evidence does not appear to have been discoverеd by chance, but was presumably due to the efforts of somе one within a few days after the trial. Such evidence must not bе merely impeaching or cumulative, but sufficient probably to change the result. The newly discovered evidence .wаs of such type as “may be discovered in almost any case,” and was not such as to call for a new trial under our well-settled rules. Fries v. Acme White Lead & Color Works,
Our judgment is that the record shows that the trial was free from reversible error, and that defendant was awarded every legal right.
Affirmed.