Kitchens v. State, 26901
| Decision Date | 11 February 1972 |
| Docket Number | No. 26901,26901 |
| Citation | 228 Ga. 624,187 S.E.2d 268 |
| Parties | Johnny Edward KITCHENS v. The STATE. |
| Court | Georgia Supreme Court |
Ralph U. Bacon, Statesboro, for appellant.
J. Lane Johnston, Dist. Atty., Statesboro, for appellee.
Syllabus Opinion by the Court
The defendant was convicted of murder with a recommendation of mercy and was sentenced to life imprisonment. His motion for a new trial was overruled and he appealed to this court from the judgment of conviction and from the sentence.
1. The Supreme Court is a court for the trial and correction of errors of law committed in the trial courts, as shown by the record of what transpired therein which has been transmitted to it. This court has no original jurisdiction, and it cannot decide questions raised for the first time after the case has been appealed to it. Constitution of the State of Georgia, Art. VI, Sec. II, Par. IV (Code Ann. § 2-3704); Velkey v. Grimes, 214 Ga. 420, 105 S.E.2d 224; Abrams v. State, 223 Ga. 216, 225, 154 S.E.2d 443; Moore v. Hanson, 224 Ga. 482(3), 162 S.E.2d 429; Bonner v. Smith, 226 Ga. 250(2), 174 S.E.2d 438. Under the foregoing principles, grounds of enumerated error numbered 1, 2 and 6, in which appellant complains of the denial of a motion for change of venue, the denial of a motion for a continuance, and of his indictment and trial on two other offenses arising out of the same act, all relate to matters not shown anywhere in the record transmitted to this court to have occurred in the trial court, and they, therefore, present nothing for our consideration.
2. The third ground of enumerated error complains of the refusal of the court to charge the jury on manslaughter and self defense. The evidence for the State with respect to the manner in which the killing occurred made out a case of cold-blooded murder perpetrated during an armed robbery in which it appeared, from the evidence for the State, that the victim, when confronted by the persons committing the robbery, reached for his gun and was shot three times by one of the robbers. The accused did not put in any evidence but merely made an unsworn statement in which he, in substance, contended that he had parted company with his co-indictees prior to the time the crime was committed. There was, thus, not one particle of evidence which in any way raised an issue as to manslaughter or self defense, and it was not error for the court to fail to charge on this issue.
3. In the fifth ground of enumerated error appellant contends that he was denied equal protection under the law and was denied a fair and impartial trial. The substance of his argument before this court in this regard is that though he was represented by a competent and experienced attorney, he was denied the investigative resources available to the State so as to enable him to locate witnesses, marshall evidence and otherwise prepare his case. It does not appear that any specific motion or ruling of the trial court was invoked in this regard. No motion for a continuance appears to have been made, nor was any other ruling of the court invoked which in any way relates to this issue. Under these circumstances, this ground of enumerated error may be disposed of upon the same principles as those grounds treated in Division 1 of this opinion. It is without merit and presents no issue for this court to pass upon.
4. In the fourth ground of enumerated error appellant contends that the court erred in denying his motion for a new trial. The only ground of the motion which is argued and insisted upon before this court relates to alleged newly discovered evidence, to wit, the testimony of the co-indictees of the accused, which he contends, if presented, would have exonerated him. Motions for a new trial on the ground of newly discovered evidence are not favored. All applications for new trial upon the ground of newly discovered evidence are addressed to the sound discretion of the trial judge, and unless it affirmatively appears that he has abused his discretion in overruling the same, his discretion will not be controlled. Miller v. State, 119 Ga. 561, 46 S.E. 838; Harris v. State, 149 Ga. 724(...
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