25 Ga. App. 568 | Ga. Ct. App. | 1920
Lead Opinion
Judgment affirmed.
Dissenting Opinion
dissenting. 1. I do not agree with the majority view of the court as announced in the first division of the decision. The ground there referred to, just as presented in the motion and argued to this court, is as follows: “ Because the court refused to allow the witness W. E. Jackson, sheriff of Clarke county, while on the stand as a witness for the State, to answer the following question propounded to him by movant’s counsel, to wit: Q. ‘ When and how did he (Dr. M. T. Summerlin) come into your custody
This court said in Dixon v. State, 12 Ga. App. 17 (3) (76 S. E. 794) : “ While, primarily, testimony that one accused of crime voluntarily submitted himself to arrest is inadmissible, 'as being of the same nature as a self-serving declaration, still, where testimony has been introduced on the part of the prosecution, tending to show flight, as evidence of conscious guilt, it is competent for the accused to rebut it by evidence showing that, so far from attempting to escape, he notified the sheriff of his desire to submit himself to custody.” Aside from this decision as a precedent, it is manifestly unfair, in my opinion, for the State to be permitted to introduce evidence of flight and reap its advantages without allowing the defendant to rebut it. Especially in this instance is it unfair, because the very witness that was testifying and giving evidence tending to show flight was, upon cross-examination, instructed by the court not to answer a question from the defendant’s counsel the answer to which, the court was advised, would tend to rebut the evidence of conscious guilt by reason of a circumstantial- proof of flight. The court disarmed the de
In my opinion the cases of Central of Georgia Ry. Co. v. Jaques, and Stead v. Cruse, cited in the decision, are not controlling authority as to the ground of the motion for a new trial here discussed. In my opinion it was not necessary in this particular instance for the movant to show in his motion for a new trial upon what ground the court refused to allow him to ask the witness, on cross-examination, the question, and elicit the answer which his motion shows he would have gotten. In addition to what I have said I think the defendant was entitled to ask this question upon cross-examination, under the broad right to make a thorough and sifting examination.
2, 3. I do not agree with the rulings announced in the third and fourth divisions of the decision. I think the requests to charge were pertinent, and, from a most careful examination of the charge of the court as a whole, I do not think the requests were in substance given. It was necessary, in my opinion, for the court to deal specifically and fully with the questions raised by the timely written requests.
8. In addition to what I have said, I do not think that the evidence in this case supported the verdict. The defendant was convicted of the offense of involuntary manslaughter in the commission of an unlawful act. The very best evidence and the only evidence which connected the defendant with the commission of the crime yras the dying declarations of the deceased which' were testified to by one of the doctors who was with her shortly before her death. Her death was occasioned by an abortion. Her dying declaration was that Dr. Summerlin, the defendant in this case, was the father of the child, and that Dr. Waters produced the abortion in Dr. Summerlin’s office. The deceased, in her dying declaration, did not say that Dr. Summerlin, this defendant, advised the abortion or aided in it, or had anything to do with it. There was no other evidence which connected this defendant with the crime charged. This court said, in Butler v. State, 11 Ga. App. 815 (76 S. E. 368) : “Mere proof of presence by the accused, when the criminal act was committed by another, and of subsequent flight, does not, in the absence of evidence showing that the accused advised or abetted the commission of the crime,