13 Ga. App. 689 | Ga. Ct. App. | 1913
Dawson Taylor was convicted of the offense of voluntary manslaughter, and he excepts to the judgment overruling his motion for a new trial. We have carefully examined the voluminous record and the various assignments of error, and we find no reason for a reversal of the judgment of the learned trial judge who presided in the ease. The tragedy which resulted in a homicide had many circumstances which rendered it more than usually deplorable, but the evidence authorized the verdict, which has been stamped with the approval of the presiding judge. There is no ground for complaint in the conduct of the trial.
One of the defenses of which the accused seeks to avail himself, — the conceded right of mutual defense as between brothers (Mattox v. State, 9 Ga. App. 293), is inapplicable to the facts of this ease, because the' evidence shows that if -any .attack was made upon Lee Taylor with metal “ knucks,” or other weapon, such assault was made not by Frank MeWaters, who was shot and killed, but by Glenn MeWaters, his son. ' If Lee Taylor was being assaulted with metal knucks, the defendant, his brother, would have, had the right to intervene and use any necessary force in protecting
The merits of the defendant’s contention that he should have a new trial rests upon two grounds: that of newly discovered evidence, and alleged bias on the part of certain members p£ the jury who tried the ease.
There seems to be some conflict as to whether Miss McNaughton’s statement was that the deceased vomited a half gallon or more, and as to how heavily laden this discharge was with whisky. We fail to see how this testimony could materially affect the result, or even why the result should be different if it should be conceded that -the deceased was thoroughly intoxicated. Miss McNaughton’s testimony as to the witness Lunsford is purely impeaching. It do.es appear from the alleged newly discovered testimony that the deceased, after vomiting, said that he wanted nothing done with the
Nothing in support of the ground of the motion for new trial based upon newly discovered testimony is offered that will warrant even a suggestion that the trial judge abused his discretion in overruling this ground, and it does not appear that the newly discovered testimony would or should produce a different result. This being true, this court is controlled by the numerous decisions of the Supreme Court in which it is held that the discretion of the-trial judge will not be controlled, in passing upon the ground of a motion for a new trial based upon newly discovered testimony, unless it appears that a different result would probably be reached upon another investigation, and that the trial judge abused his discretion in not granting a new trial.
In the attainment of justice nothing is more indispensable than that the minds of the jurors who are to pass upon the issue be perfectly impartial, but the law places upon the trial judge, and, we think, wisely, the responsibility of determining the competency of the jurors, and clothes him with a discretion which will not he controlled, unless it is manifest that it has been abused. The decisions are uniform upon this point. We can not say that in the present case the learned judge who presided at the trial erred. See, in this connection, Costly v. State, 19 Ga. 614; Vann v. State, 83 Ga. 60 (9 S. E. 945); Buchanan v. State, 24 Ga. 286 (2); Brinkley v. State, 58 Ga. 296 (3); Durham v. State, 70 Ga. 265 (12); Huff v. State, 104 Ga. 521 (7) (30 S. E. 808); Allen v. State, 102 Ga. 619 (29 S. E. 470); King v. State, 119 Ga. 426 (46 S. E. 633); Jones v. State, 117 Ga. 710 (44 S. E. 877); Perry v. State, 117 Ga. 719 (45 S. E. 77); Hall v. State, 124 Ga. 649 (52 S. E. 891); Moore v. State, 1 Ga. App. 728 (57 S. E. 956); DeVane v. Atlanta &c. R. Co., 4 Ga. App. 141 (5) (60 S. E. 1079); Daniel v. State, 11 Ga. App. 800 (4) (76 S. E. 162). The finding