Kelly v. State
| Decision Date | 11 May 1916 |
| Citation | 88 S.E. 822,145 Ga. 210 |
| Parties | KELLY v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Where a witness testifies to material facts, and in connection therewith admits that on a former occasion, when the case was being investigated in a court of inquiry, he had testified contradictory to the testimony given on the trial, and in an effort to explain why he had delivered contradictory testimony stated that the former testimony had been given because he had been influenced to do so by another person evidence that the other person was also examined in the court of inquiry and delivered testimony similar to that which was then delivered by the witness, and other evidence that the testimony of such other person as delivered before the court of inquiry was false, was inadmissible for the purpose of corroborating the testimony of the witness concerning the explanations given for having delivered contradictory testimony.
Under no view of the evidence was the law of voluntary manslaughter involved.
Under one phase of the case involuntary manslaughter in the commission of an unlawful act was involved, and it was erroneous to omit to charge on that subject.
The charge upon the subject of impeachment of witnesses was not open to the criticism made upon it. The omission to charge without request on the subject of impeachment of witnesses was not erroneous.
In the light of the charge on the subject it was not erroneous, in the absence of appropriate request, for the judge to omit to define more specifically the words "successful impeachment."
Error from Superior Court, Chatham County; W. G. Charlton, Judge.
J. T Kelly was convicted of murder, and brings error. Reversed.
Robert L. Colding and Osborne, Lawrence & Abrahams, all of Savannah for plaintiff in error.
Walter C. Hartridge, Sol. Gen., of Savannah, Clifford Walker, Atty Gen., and Mark Bolding, of Atlanta, for the State.
J. T. Kelly was convicted of the murder of James Egense, and the jury in their verdict recommended him to the mercy of the court. He made a motion for new trial, which was overruled, and he excepted.
1. When put on trial the accused denied commission of the homicide, and sought to establish an alibi. Evidence was introduced to the effect that at the time the state contended the crime was committed the accused was with a woman named Shuman at a house remote from the scene of the crime, of which the woman was an inmate, and of which another woman named Herndon was proprietress. While making his statement to the jury the accused stated that he was with the Shuman woman at the house above indicated at the time the state contended the homicide was committed, and that the Shuman woman had so testified in the police court. The Shuman woman was introduced by the state in rebuttal, and testified, in effect, that her testimony in the police court was as stated by the defendant, but that such testimony was untrue, and that she had not seen the accused at all on the night of the homicide. She gave as a reason for swearing falsely in the police court that she had been persuaded to do so by the Herndon woman. In an effort to corroborate this part of the testimony, the state contended that the testimony in the police court was delivered in pursuance of a conspiracy between the two women that each should swear falsely to the effect that they saw the accused at the house on the night of the homicide. To support such contention, after the Shuman woman had testified, the state introduced also the testimony of a police officer to the effect that he heard the Herndon woman testify in the police court that she saw the accused at her house at the time above indicated, and also testimony of two other witnesses from Augusta, Ga., to the effect that they saw the Herndon woman at the time in question in that city, which would have excluded the possibility of her presence at her house in Savannah at such time, and of her having seen the accused there, as it was said she testified in the police court. The testimony of the police officer and that of the two witnesses last mentioned was admitted over stated objections interposed by the accused, and reference was made thereto in the charge to the jury. Complaint was made in the motion for new trial of the admission of the evidence, and also of the charge of the court. The isolated circumstance that the Herndon woman testified falsely in the police court to a fact to which the Shuman woman also testified falsely would not show that the former had persuaded the latter so to swear. It would be a mere matter of two witnesses swearing falsely to the same thing, and would not indicate that either persuaded the other. While the solicitor general stated that he proposed to show a conspiracy between the two women to swear falsely in the police court, the evidence which he produced for such purpose did not go to the extent of showing an agreement between the two women that each of them should swear falsely. Under the circumstances the testimony of the police officer and that of the witnesses from Augusta was irrelevant, and was improperly admitted. The error also entered into the charge of the court on the subject, as complained of in one of the grounds of the motion for new trial.
2. A number of the grounds of the motion for new trial complain of the omission of the judge to charge on the law of voluntary manslaughter. A charge upon that subject should not be given unless it is authorized by the evidence It is unnecessary in ruling upon this question to state the details...
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