169 Ga. 142 | Ga. | 1929
Lead Opinion
Robert Willingham was tried under an indictment charging him with the murder of his wife, Dora Willingham. The jury returned a verdict of guilty, with a recommendation. The defendant made a motion for a new trial, which was overruled by the court, and the defendant excepted. The original motion for new trial consists of the usual general grounds; and this was afterwards amended, the amendment containing numerous grounds with special assignments of error.
The first ground of the amendment contains an assignment of error upon a ruling of the court holding certain jurors incompetent and setting these jurors aside. The jurors referred to in answer to the voir dire question, “Are you conscientiously opposed to capital punishment?” answered, “I am, if it is a case of circumstantial evidence. I am opposed to capital punishment on circumstantial evidence.” The court then inquired of the solicitor-general, “Is this a case in which the State relies for a conviction upon circumstantial evidence?” to which the solicitor-general replied, “Yes, the evidence is partly circumstantial;” and then the jurors giving the answer to the voir dire question above stated were excused. This was not error, especially in view of the fact that the evidence upon which the State relied to establish the guilt of the accused was circumstantial. There was no eye-witness, the defendant contending that in the struggle for a pistol which was
The court was duly requested in Avriting to charge as follows: “The fact that one who is accused of a crime stands his ground, and does not flee, is very doubtful and equivocal evidence of his innocence, and our courts have held that such evidence is not admissible. And so when, one accused of crime absents himself or flees to avoid arrest, it is only a circumstance that may be considered along with any other fact in the case, in determining the guilt or innocence of the accused. The accused may explain his alleged flight. He may show that he left for other reasons, and not from a consciousness of guilt. The jury may accept this explanation; and if they come to the conclusion that the flight Avas not immediately after the commission of the alleged crime, but that the accused absented himself several days later, then the jury should draw no inference of guilt, and there should be no presumption of guilt against the accused on account of the alleged flight. Flight, at most, is only a circumstance which may be Aveighed by the jury, in connection with other circumstances, to determine guilt, and is of itself no such circumstance as authorizes the jury to presume guilt.” The court refused to give this in charge as written. The refusal was not error. The requested charge practically excluded the consideration of flight, unless it took place “immediately after the commission of the alleged crime.” The judge, on the subject of flight, actually charged the jury as folloAvs: “Flight, if any, and similar acts, if proved, from which an inference of consciousness of guilt may be drawn, may be considered by the jury. But flight is subject to explanation. The weight to be given it, or whether the jury Avill draw an inference of consciousness of guilt or not, is for the jury. It is for the jury to determine whether the flight of the defendant, if‘any, was due to a sense of guilt or to other reasons. If from other reasons, no inference hurtful to the defendant must be drawn by the jury.”
In the next ground error is assigned upon the refusal of the court to give the following in charge, upon the subject of flight: “The State in this case has been allowed to introduce evidence on the question of flight. As to flight I charge you as follows: If
In the next ground error is assigned upon a refusal of a request to give the following in charge. “(1) As there were no eyewitnesses to the killing, the State in this case relies upon circumstantial evidence to make out its case. The defendant contends, under his plea of not guilty, that the killing of his wife was an accident; that his wife had a pistol in her hand, which he endeavored to take from her, and that in the scuffle which ensued the pistol was discharged while in his wife’s hand, and fell from her hand to the floor; that the bullet from the pistol discharged while in his wife’s, hand entered her brain and killed her; that the killing was an accident, not punishable under the law. This is the defense, the contention, the theory of the defendant. The State in its indictment charges that the defendant wilfully and feloniously shot and killed
In the next ground error is assigned upon the failure of the court to state more particularly the contentions of the defendant. The court stated the contentions of the State by repeating the recitals contained in the bill of indictment, and then added: “To
The rulings stated in headnotes 4 to 15 inclusive, require no elaboration.
Judgment affirmed.
Rehearing
ON REHEARING.
A rehearing of this case was granted upon motion of plaintiff in error. After consideration of the application, the judgment as at first rendered is adhered to; but another headnote, the 10th, has been added, wherein a distinct ruling is made upon the exception contained in the motion for a new trial assigning error upon the court’s failure to charge the law of involuntary manslaughter.