This case involves the crime of murder. The defendant was indicted and convicted of killing her husband by shooting him with a certain pistol with malice aforethought. The accused admitted the killing to an investigating officer but added certain mitigating circumstances, and in her unsworn statement, offered further circumstances to show justification or mitigation by reason of fear of her husband who had cut her and beat her before and who had threatened to kill her. There was, however, other testimony by State’s witnesses showing that the killing was without justification or mitigation. The jury returned a verdict of guilty with a recommendation of mercy. The exception is to the overruling of a motion for new trial as amended. -Held:
1. Whether or not the evidence showing the defendant had spent nights in the room with another man unlawfully put her character in evidence,
Code
§ 38-202,
Brown v.
State,
2. The second amended ground is too indefinite and incomplete to enable this court to rule thereon. It complains because of the ruling disallowing testimony of a State’s witness on cross-examination. The question was “Whatever date that might happen to be on, on Monday after this happened, she’s been in jail down here ever since?” The expected answer was “Yes, she has been in jail here ever since the Monday after this happened.” Apparently it was intended to rebut evidence of flight, but the indefiniteness of “ever since the Monday after this happened” leaves unaccounted for the time between when it happened and the Monday referred to in the question. There is no merit in this ground.
3. The exception in amended ground 4 is to an excerpt of the charge wherein it is stated that if the State proves or the defendant admits the killing in the manner charged, the law
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presumes malice and the burden is cast upon the accused to justify the killing. The charge is subject to the attack because it failed to conform to the law in that it should have stated that if the State’s evidence showing the killing in the manner charged or an admission of the defendant so showing did not also show circumstances of justification or mitigation then, and only then, would malice be presumed, and the burden rests upon the defendant to show justification or mitigation.
Futch v. State,
4. It was not error for the judge to preface a. written request to charge with the words “as I have heretofore stated” in giving this charge. It did not prejudice the accused nor minimize the request but simply informed the jury that he had already charged to the same effect. This emphasis was favorable to the accused.
5. The evidence abundantly proved the guilt of the accused, and the general grounds raising this question are without merit.
6. The rulings made in Division 3 require a new trial.
Judgment reversed.