183 Ga. 711 | Ga. | 1937
Mose Trammell was indicted for the murder of his wife. On the trial the.evidence tended to show the following facts: Mose Trammell and his wife were separated. The wife was living with her mother in Troup County, and the defendant was living in Atlanta. He went to Troup County to visit his wife. He arrived at the home of his mother-in-law, and found the wife and her sister ironing. Their mother also was in the room, sitting by a fire. They were talking. The defendant became 'enraged at the refusal of his wife to return to him, and cut and stabbed the three women with his .pocket-knife. They fell out the doo^ into the yard, or were thrown out by defendant, he
Two grounds of the motion are as follows: (4) “Movant contends that the court erred in failing and refusing to grant a continuance in his case, on motion. . . On the call of the case for trial by the court, and the State announcing read3r, the court . . said, “"What do you say for the defendant?’ Thereupon Mr. John H. Hudson of counsel for movant, in his place as such in open court, moved for a continuance, as follows: £The defendant will not be ready in this case. Last week, beginning on Monday morning, I was in the United States court up until Tuesday at 11:00. After that I went into the State court to assist in the prosecution of a case where I had previously attended the prosecution, and we finished that case Saturday afternoon about four o’clock. I have hardly had an opportune, may it please your honor, to look at the indictment. I understand there are two indictments, and have had no time in the world to consult with the defendant, and have seen him only one time. No time to prepare this case and present it properly up to the present. For those reasons, I feel it is my duty as one of the counsel in the case to ask this court to grant a reasonable time to get ready.’ Movant contends that he should' have been granted a continuance by the court in this case, in order that his counsel have a reasonable time lo prepare his defense; and he further contends that in refusing
A verdict finding the defendant guilty of uxoricide should not be set aside as contrary- to law and the evidence, and a new trial granted, solely because the only eye-witness to the killing was the mother of the defendant’s wife, who was biased and prejudiced, and because the defendant had wounded her at the time he killed his wife, and, the testimony of such witness giving a version of the killing contrary to that given by the defendant in his statement, the jury should have believed the defendant’s statement in preference thereto. The probative value of evidence and the credibility of witnesses are matters for the jury. The statement of the defendant, not under oath, has only such force as the jury may think right to give it. They may believe it in preference to the sworn testimony, if they see fit. Code, §§ 38-415, 38-1805.
A new. trial should not be granted because of the admission in evidence of a letter purporting to have been written by the defendant to his wife, in which he threatened to kill her if she refused to return home with him, in that the only witness who identified the letter as having been written by the defendant was his brother-in-law and was an uneducated negro who was biased and embittered toward the defendant, and had seen the defendant
The judge did not err in charging the jury that "while it is true that the law presumes malice whenever a homicide has been shown, yet that presumption of malice may be rebutted by the defendant from evidence offered by the defendant and by the State, or by both,” in that the defendant offered no evidence, and said instruction had the effect of calling attention of the jury to that fact.
The verdict finding the defendant guilty of murder, without a recommendation, can not be set aside on the ground that one of the jurors was a non-resident of the State at the time of the trial, no challenge having been presented before verdict. "An objection that one of the jurors who tried the case was a non-resident of the county at the time of the trial, being propter defectum, comes too late after verdict.” Daniel v. State, 11 Ga. App. 799 (6) (76 S. E. 162). See Jordan v. State, 119 Ga. 443 (5) (46 S. E. 679); Hill v. State, 64 Ga. 453, 465. This is true even though it appears that the movant did not know of such fact until after the verdict. Brown v. State, 105 Ga. 640 (31 S. E. 557). Furthermore, under the counter-showing by the State, the juror deposed that he was, at the time, a resident of the county where the trial was had. Brown v. State, supra; Sikes v. State, 116 Ga. 182 (42 S. E. 346).
The evidence authorized the verdict, and the judge did not err in overruling the motion for a new trial.
Judgment afirmed.