Hightower v. State
| Decision Date | 20 January 1914 |
| Docket Number | 5,326. |
| Citation | 80 S.E. 684,14 Ga.App. 246 |
| Parties | HIGHTOWER v. STATE. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
There was evidence on the part of the prosecution which authorized a conviction of the offense of voluntary manslaughter; and hence the trial judge did not err in instructing the jury upon that phase of the case. Nor were the instructions upon the subject of voluntary manslaughter, for any of the reasons assigned, erroneous.
Instructions upon the law relating to impeachment of witnesses are not required, in the absence of a timely and appropriate written request. And when the instruction upon the subject of impeachment, as given without a request, is abstractly correct, and not apparently prejudicial, the fact that fuller instructions upon the subject could properly have been given will not require the grant of a new trial, in the absence of a written request calling the attention of the court to the propositions which have been omitted and which it is contended are material. Since the trial judge, in the absence of a written request, is not required to charge upon the subject of impeachment at all, correct instructions as to the legal modes by which a witness may be impeached are not vitiated, in the absence of a written request, by failure to tell the jury that if the witness has been successfully impeached, and found to be unworthy of belief, the jury may wholly disregard his testimony, and that if satisfied that the witness has willfully and knowingly sworn falsely to one material fact, they will be authorized to disbelieve him as to every matter on which he has testified.
In a generic sense the term "man" includes "woman," and the pronoun "he" will include a person of the feminine gender. Civil Code, § 4 (3).
The degree of strictness to be applied in enforcing the rule requiring the sequestration of witnesses is a matter addressed wholly to the discretion of the trial judge. This discretion may be abused where, by permitting persons actively interested in the result of the case to intermingle with witnesses who have been ordered to be sequestered, there is a probability that their testimony may be influenced and moulded to the prejudice of either of the parties in the cause. And though a trial judge may not exclude the testimony of a witness where the separation of the witnesses has been ordered and where the order of sequestration has been disobeyed, it is the duty of the court to enforce a rigid adherence to the letter of the rule where his attention is directed in advance to an impending violation of the party's right to have the witnesses sequestered, and upon a showing that a denial or abridgment of this right may be prejudicial in its result. It would have been error in the present case to permit the real, though not the nominal prosecutor to accompany the Solicitor General and be present during the latter's conference with two of the witnesses for the state, which was not in the presence of the court and to accompany each of these witnesses as they severally came to the stand from the room in which they had been sequestered and into the courtroom, if an objection to the proposed conduct of the prosecutor and to his having any contact or communication with the witnesses had been made before the incident, and even in anticipation of the probability of his presence influencing the witnesses. In the present case, however, no objection was made until after the prosecutor had gone into the presence of the sequestered witnesses, and the court could not grant the motion to exclude the testimony of these witnesses.
The accused not having put her character in issue, and there being no evidence to establish a causal connection between the specific act of immorality alleged to have been admitted by her and the homicide, it was error, prejudicial to her right to a fair and impartial trial, to overrule a timely motion to exclude testimony to the effect that the defendant had admitted to the witness that she had sexual intercourse with one other than her husband. The admission related to an act committed at a time and place different from that of the homicide, it was not a part of the res gestæ, and it did not illustrate the motive which actuated the defendant in the assault which caused the death of her husband, or aid the jury in determining whether the killing was murder manslaughter, or justifiable homicide. The objection should have been sustained and the testimony promptly and effectually excluded from the jury.
Error from Superior Court, Jasper County; J. B. Park, Judge.
Elizabeth Hightower was convicted of voluntary homicide, and brings error. Reversed.
A. S Thurman, of Monticello, for plaintiff in error.
J. E. Pottle, Sol. Gen., of Milledgeville, for the State.
Elizabeth Hightower was indicted for the murder of her husband, Ed Hightower, and was convicted of voluntary manslaughter. Her motion for a new trial was overruled, and exception is taken to that judgment. It is needless to discuss the general grounds of the motion for a new trial, because a careful review of the testimony discloses sufficient evidence to have authorized the jury to return the verdict rendered; and the contention of learned counsel for the plaintiff in error that the evidence demanded either that the defendant be convicted of murder or acquitted is not sustained by the record. For the same reason the various assignments complaining of error in that portion of the charge of the court which relates to the subject of voluntary manslaughter are without merit. It is true that the testimony for the defendant, and her own statement, would have authorized an acquittal, and that the testimony for the prosecution, including the alleged dying declaration of the deceased, might have required a verdict of guilty of murder, but an analysis of the testimony shows plainly that, even if the jury gave the preference to the testimony in behalf of the state, a verdict finding the defendant guilty of murder was not demanded, and that, conceding to the jury their right to determine the credibility of all the witnesses there is sufficient evidence to authorize the verdict finding the defendant guilty of voluntary manslaughter. Superficially, it would seem that a finding for murder would be demanded as a result of giving credence to the witnesses who testified in behalf of the state; but since the jury are now, by statute, the exclusive judges of what is "cooling time," it is not, as formerly, within the province of the court to determine, as a matter of law, that the flight of any particular specified period of time is sufficient for the subsidence of passion, and sufficient to allow the voice of reason and humanity to be heard. No matter if it appears to the court that there has been such a lapse of time that it would be unreasonable to suppose passion had not cooled, it is within the prerogative of the jury to say that a period of time, no matter how long, is too short for reason to have fully reasserted its dominion under the circumstances of provocation.
If, as declared by our Legislature, the jury are in all cases to exercise the exclusive prerogative of adjudging whether the provocation is so equivalent to an assault as to reduce the homicide from murder to manslaughter, and whether such equivalent provocation authorizes that supposedly irresistible impulse of passion which will mitigate a homicide unless, in their judgment, a sufficient time has elapsed for the voice of reason and humanity to be heard (and there can be no doubt that this is the law), then certainly in the present case it was for the jury to say whether the deadly assault made by the defendant upon her husband was actuated by malice, or whether it was caused by burning anger and irresistible passion, primarily aroused by the beating given her a few hours before by her husband. This put up to the jury to determine whether sufficient "cooling time" had elapsed between the beating of the accused and the homicide for reason and humanity to reassume their sway. There are sometimes circumstances which justly arouse an indignation which glows more ruddily with the passage of time (a passion which is not really "irresistible," as defined by law, until it passes from red to white heat), and by every rule of reason, as well as by the legislative enactment of 1899, the sufficiency of "cooling time" should be submitted to the jury; for the jury is composed of men of various minds, and generally includes those whose experiences have been attuned to different touches upon the varied and variant chords of human feeling.
In the present case it is in evidence that the husband had beaten his wife only a few hours before the homicide. It is for the jury to say (and no court can gainsay their right so to adjudge) whether the assault upon...
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