Bass v. State

• Decision Date: 15 December 1921
• Docket Number: 2648.
• Citation: 110 S.E. 237,152 Ga. 415
• Parties: BASS v. STATE.
• Court: Georgia Supreme Court

110 S.E. 237

152 Ga. 415

BASS v. STATE.

No. 2648.

Supreme Court of Georgia

December 15, 1921

Rehearing Denied Jan. 13, 1922.

Syllabus by the Court.

Where a defendant on being convicted of a crime makes a motion for new trial, and more than 60 days after the verdict tenders a bill of exceptions complaining of the judgment overruling such motion, error cannot be separately assigned in the bill of exceptions, complaining of a ruling of the court made at the trial on the admissibility of evidence. The complaint in the bill of exceptions, invoking a ruling on certain constitutional questions based on alleged error in the admission of evidence, cannot be considered.

Where a motion is made to rule out the entire evidence of a witness in mass, and a part of the same is competent evidence and unobjectionable, it is not error to overrule the motion. Applying this ruling, the assignment of error based on the ground of the motion for new trial which complains of the refusal of the court to rule out the testimony of the physician, as to the nature of the wounds, cause of the death, dying declarations, etc., is without merit.

The fact that the trial judge leaves his seat on the bench and remains a few feet away in the courtroom for a short while during the argument of the attorney for the state is no cause for granting the defendant a new trial, where it is not shown that injury has resulted to the defendant. Pritchett v State, 92 Ga. 65 (2), 18 S.E. 536.

It was alleged that the defendant was injured, because his attorney desired to move the court to expunge certain remarks made by the attorney for the state, and to move for a mistrial on account of such remarks, but could not do so on account of absence of the judge, and when the judge resumed his seat on the bench the matter had "passed out of his [the attorney's] mind." Held, that even if the remarks were improper, any possible injury to the defendant was attributable to the failure of defendant's attorney to make appropriate objection and motion for mistrial, and not to any improper absence of the judge.

It was not erroneous to charge the jury, "The defendant in this case, as in all criminal cases, enters into the trial of the case with the presumption of innocence in his favor, and that goes with him throughout the entire trial until met and overcome by evidence satisfactory to you of his guilt beyond a reasonable doubt," the alleged ground of error being that the jury should have been instructed "that the burden of proof was upon the state to prove the defendant's guilt beyond a reasonable doubt, and that the state had to carry this burden before the jury could convict the defendant."

The judge charged: "The defendant has made a statement in your hearing. You can give to that statement just such weight and credit as you think it is entitled to receive. You may believe it in preference to the sworn testimony, and acquit the defendant." Held, that this charge was not erroneous for the alleged reason that "the court failed in this immediate connection to charge the jury that the defendant had a right under the law to make a statement, and that they could believe it in preference to the sworn testimony if they wished to do so. This charge on the defendant's statement is not full enough, and does not charge the statutory law on the subject so that the jury could understand it."

The evidence authorized the charge defining express malice, in the language of the Pen. Code 1910, § 61.

The court charged: "The defendant insists in this case that the killing was the result of an accident; and upon that subject I charge you as follows: A person shall not be found guilty of any crime or misdemeanor committed by misfortune or accident, and where it satisfactorily appears that there was no evil design or intention or culpable neglect." Held, that this charge stated a correct principle of law applicable to the case. If the defendant desired further instructions on the subject, there should have been an appropriate written request.

"In order to make dying declarations admissible in evidence, the deceased must not only be actually in extremis, but he must believe that he is in a dying condition. And this consciousness may be inferred, not only from the statements of the party, but also from the nature of the wound, and other circumstances." Campbell v. State, 11 Ga 353 (3); Washington v. State, 137 Ga. 218, 73 S.E 512; Fitzpatrick v. State, 149 Ga. 75, 99 S.E. 128.

Applying this rule, the evidence authorized the charge: "It is insisted by the state that the deceased made a dying declaration; and I charge you, that the court leaves it to you whether or not a dying declaration, in fact, has been made. I charge you that dying declarations, made by any person in the article of death, who is conscious of his condition, as to the cause of his death and the person who killed him, are admissible in evidence in a prosecution for the homicide. A dying declaration, if you find from the evidence that one was made, must not be considered by the jury unless you are satisfied beyond a reasonable doubt from the evidence that such declaration was made when the deceased was in the article of death, and that s...