Dunham v. State
| Decision Date | 31 January 1911 |
| Docket Number | 2,793. |
| Parties | DUNHAM v. STATE. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
The trial judge having previously called the attention of the jury, during the course of the trial, to the fact that the wife was not a competent witness in the case then pending and could not testify in behalf of her husband, and having instructed the jury that the fact that the defendant could not offer his wife as a witness could not be counted against him, it was not error thereafter to omit to charge the jury that the husband or the wife would not be competent to give evidence in any criminal proceeding for or against each other, and that in this case the wife of the defendant was not a competent witness to give evidence for or against him.
It was the defendant's right to show to the jury that he had produced all of the witnesses which were within his power and control and accessible to him, and for that reason he could properly have shown that his children, who were present at the time of the difficulty, were of such tender, age as not to be able to testify. But inasmuch as the defendant's counsel did not state to the court what answer he anticipated to the questions which were objected to, nor inform the court of the purpose of the testimony repelled, or to what further testimony it was expected that it would lead, it was not error to decline to allow the witness to answer as to the number and ages of the defendant's children.
Even though the defendant's wife was not a competent witness the statement attributed to her was admissible, both as a part of the res gestæ of the difficulty and because, having been alleged to have been made in the defendant's presence, it was such a statement as might have required a denial on the part of the defendant. According to the testimony which was objected to, the defendant's wife said to the prosecutor in the defendant's presence "Jim, go on home; Lymus [the defendant] is trying to kill you with a gun."
The evidence authorized an inference that there was a mutual intent to fight, and hence it was not error to instruct the jury upon the law applicable to that phase of the case.
The discretion of the trial judge, as regards the sentence imposed, in a case in which the jury finds the defendant guilty, but recommends that the defendant be punished as for a misdemeanor, and whether he shall act upon such recommendation or disregard it,...
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