Knight v. State
| Citation | 39 S.E. 928,114 Ga. 48 |
| Parties | KNIGHT v. STATE. |
| Decision Date | 06 November 1901 |
| Court | Supreme Court of Georgia |
Syllabus by the Court.
1. A conversation between a husband and wife, though intended to be confidential, may, whenever relevant, be proved by one who overheard it; and it is relevant in a trial for murder when it discloses that the wife charged the husband with having committed the homicide, and that he made a reply which could reasonably be construed as an admission that he did the killing.
2. If the admissibility of testimony as to the making of a given declaration depends upon whether or not it was heard by a party to the case on trial, and this, under the evidence, is a matter of doubt, it is not erroneous to allow proof of the declaration, and instruct the jury to disregard it if they believe the party did not hear it. (a) Aside from what is said above, the declaration here referred to was apparently admissible as a part of the resgestæ.
3. A witness sought to be impeached by proof of contradictory statements cannot be supported by proof that he made elsewhere other statements in harmony with his testimony on the stand.
4. Though, in a given case, it may not be appropriate to charge upon the law of alibi, so doing is not cause for a new trial when it appears that the accused was not thereby injured.
5. It is proper not to charge upon the law of confessions when there is no proof that a confession was made.
6. Failure by the judge to apply a rule of evidence to the testimony of a particular witness is not, in the absence of a request so to do, erroneous.
7. There was, in the present case, nothing calling for a charge upon the law of manslaughter.
8. A judge should not, in charging upon the prisoner's statement, say to the jury, "That statement is in no sense binding on you;" but the use of this expression will not be treated as cause for a new trial when the charge on this subject is in other respects full, clear, and accurate, and it is manifest that the jury correctly apprehended what were, under the statute, their right and duty with respect to the statement.
9. There was ample evidence to warrant the verdict, and the grounds of the motion for a new trial predicated on newly-discovered evidence do not, under the established rules, authorize the granting of another hearing.
Error from superior court, Meriwether county; S.W. Harris, Judge.
Enos Knight was convicted of homicide, and brings error. Affirmed.
W. S Howell, Allen & Tisinger, and McLaughlin & Jones, for plaintiff in error.
J. R Terrell, T. A. Atkinson, Sol. Gen., and J. M. Terrell, Atty. Gen., for the State.
The plaintiff in error was convicted of the murder of Sol Owens, made a motion for a new trial, and excepted to the overruling thereof. It was insisted in behalf of the accused that the killing, which was done with a pistol, was not his act, but that of one Alex Finley.
1. The court admitted, over the objection of counsel for the accused, the testimony of certain witnesses to the effect that the wife of the accused said to him, shortly after the killing, "You have shot big Bud" (meaning the deceased), to which he replied, "He wasn't hurt much." This testimony was objected to on the ground that it related to a confidential communication between husband and wife, and that her sayings were not admissible against him. It is true that Civ. Code, § 5198, declares "There are certain admissions and communications excluded from public policy," and, among them, "communications between husband and wife." But the meaning of this provision simply is that neither of the married pair will be permitted to testify as a witness concerning such communications, or to furnish to another, for the purpose of being introduced in evidence, writings of any kind received under the seal of confidence during coverture. This section of our Code was not intended to forbid one who overhears a conversation between husband and wife from testifying with respect to the same. If they are unsuccessful in keeping secret that which they intend each other shall so regard, the mere fact that they did so intend will not render incompetent the testimony of an outsider. See, in this connection, 19 Am. & Eng. Enc. Law, 154; 1 Whart. Ev. (3d Ed.) § 427; 1 Greenl. Ev. (16th Ed.) p. 392, § 254. The wife was not, in the present instance, competent to testify for or against her husband. Pen. Code, § 1011, par. 4. But an admission of an incriminating nature made by the husband to and in the presence of the wife, in response to something said by her to him, was certainly relevant; and any stranger who overheard the conversation was competent to testify in regard thereto. She charged him with the commission of the homicide, and his reply, "He wasn't hurt much," is susceptible of the construction that he practically admitted the shooting. What she said was clearly relevant, as tending to explain the meaning of his response thereto.
2. Error is assigned upon the refusal of the court to rule out the testimony of a witness that, "immediately after the pistol fired, Sol Owens asked, 'Who in the hell was that shot me?' and Will Strahan spoke, and says that it was Enos Knight shot." A review of all the evidence in the case leaves it uncertain whether the remark of Strahan was or was not made in the hearing of the accused, though the jury might properly have inferred that he heard it. With regard to this matter the court instructed the jury that, unless they believed the accused did hear what Strahan said, they should not consider the testimony above mentioned. We cannot therefore, see that any injury to the accused resulted; and,...
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