Carson v. The State Of Ga.

• Decision Date: 31 October 1887
• Citation: 80 Ga. 170
• Parties: Carson. vs. The State of Georgia.
• Court: Georgia Supreme Court

80 Ga. 170

Carson. vs. The State of Georgia.

Supreme Court of the State of Georgia

OCTOBER TERM, 1887.

Criminal law. Witness. Practice in superior court. Charge of court. Malice. Murder. Before Judge Fort. Macon superior court. May term, 1887.

Reported in the decision.

A. A. Carson, for plaintiff in error.

Clifford Anderson, attorney-general, by brief, and C. B. Hudson, solicitor-general, by B. P. Hollis, for the State.

Blandford, Justice.

The plaintiff in error was indicted and tried for the murder of Jennie Smith, and was convicted and sentenced to the penitentiary for life. He made a motion for a new trial, on several grounds, which was refused; whereupon he excepted.

1. Two of the grounds insisted upon are the following:

" 4th. Because the court erred in admitting the testimony of Alex. Smith, over the objection of defendant's counsel, under the following facts: The State's witnesses were required to be put under the rule and were all sworn and sent out of the court-room, said Smith remaining in the room, not having been sworn; said Smith was then allowed to testify as to the age of one of the witnesses, Mary Smith; said witness being the father of the deceased and assisting the solicitor-general as prosecutor.

"5th. Because the court allowed the sheriff, M. B. Gil-more, to testify in the case, the said Gilmore not having been put under the rule, as requested, of all the State's witnesses, and remaining all the while in the court room; neither was there any request that he be allowed to remain in the court-house; said witness being the sheriff of Macon county in court on official business.''

The sheriff testified that he arrested the accused in Muscogee county, and this was all he testified to. Smith testified as to the age of Mary Smith. This testimony was not corroborative of anything sworn to by other witnesses. We do not think the court erred in allowing these witnesses to testify. When this rule was invoked to put thewitnesses out of the court-room, it was in a great degree discretionary with the presiding judge whether he would allow some of them to remain or not; but it appears affir-matively in this case that no harm or damage could come to the accused by allowing these witnesses to testify.

2. The next ground of error is, that the court erred in his charge in presenting the defendants theory of the killing to the jury. It appears from the record that the court stated to the jury the contentions of counsel for the State and the defendant; but the record does not show that in so doing he erred, or that the theory stated by the court was not in fact the theory presented by counsel on the trial of the case. Before anything could be gained by this exception, it must affirmatively appear that the court did not correctly state to the jury the theory of the defendant.^*

3. Another ground of the motion is the following: "6th. Because the court erred in refusing to give the following written charge requested by counsel for the defendant; to-wit: 'In all cases of murder, there must be a motive for the killing, or such an absence of motive as, from all the circumstances of the killing, would show a wicked, malignant and abandoned heart. There can be no murder without malice, and no malice without motive; and if you believe from the evidence that there was neither malice nor motive on the part of the defendant in killing the deceased, alleged in the bill of indictment, then I...