Lively v. State

• Decision Date: 14 March 1934
• Docket Number: 10079.
• Citation: 173 S.E. 836,178 Ga. 693
• Parties: LIVELY v. STATE.
• Court: Georgia Supreme Court

173 S.E. 836

178 Ga. 693

LIVELY v. STATE.

No. 10079.

Supreme Court of Georgia

March 14, 1934

Syllabus by the Court.

1. For admission of evidence to be a ground for new trial, it must appear what objection was urged at the time it was offered.

2. A witness testified: "I reckon he had done cut his mother-in-law's throat last. I don't know which one he cut first." Objection was interposed "to what the witness reckons." It does not appear that the testimony was hurtful to the defendant; and even if the testimony be construed as a conclusion by the witness, its admission was harmless.

3. The identification of the razor offered in evidence as the weapon with which the crime was committed was sufficient to authorize its admission in evidence.

4. In the course of his examination of a witness of tender years the judge did not err in stating in the hearing of the jury "Gentlemen, of course, she is rather young, rather undeveloped. At the same time, I believe the jury can see her, and they have heard her responses; and I will let her tell whatever you desire to ask her before the jury, and they can put whatever weight they see fit to give it on her testimony, what she says."

5. The wife of the defendant was not a competent witness to testify in his behalf.

6. No reversible error appears in the excerpts from the charge of the court to the jury, assigned as error.

7. The evidence authorized the verdict, and the court did not err in refusing a new trial.

Error from Superior Court, Fulton County; C. C. Pittman, Judge.

Miley Lively was convicted of murder, and he brings error.

Affirmed.

Walter M. Archer and Robert McGinley, both of Atlanta, for plaintiff in error.

John A Boykin, Sol. Gen., J. Walter LeCraw, and John H. Hudson, all of Atlanta, and M. U. Yeomans, Atty. Gen., and B. D. Murphy and Jno. T. Goree, Asst. Attys. Gen., for the State.

HUTCHESON Justice.

Miley Lively was indicted for the murder of Rethey Kell. He was tried, convicted, and sentenced to be electrocuted. His motion for new trial was overruled and he excepted.

1. Ground 1 of the amendment to the motion for new trial assigns error because the court allowed a witness, Lucile Barrett, to testify; she being of tender years. The assignment of error is, "Because the following material evidence was illegally admitted by the court to the jury, to wit," and then follow several pages of questions by the court and answers by the witness, looking to the qualification of the witness to testify. Apparently there was no objection by counsel for the defendant to the competency of the witness or to the testimony as given by her; and the assignment of error presents no question for this court to pass on. Polk v. State, 18 Ga.App. 324 (5), 89 S.E. 437; McDow v. State, 176 Ga. 764 (3), 168 S.E. 869.

2. Special ground 2 complains because Dixie Hood, a witness for the state, when the question was asked, "When you saw him cutting his own throat, what did you do?" testified: "I reckon he had done cut his mother-in-law's throat last. I don't know which one he cut first." The objection urged was: "We object to what the witness reckons." If the meaning of the objection is that the testimony was a conclusion of the witness, it does not appear that the testimony could have either benefited or harmed the defendant. Two people were cut with a razor by the defendant, and the witness was being asked which was cut first. It could make no material difference what was the order of the cutting. The ground of objection is without merit.

3. The third assignment of error is on the ground that the court illegally admitted in evidence a razor, because it has not been proved that it was the razor that was used in the commission of the crime. The razor was submitted to several witnesses, and they testified that it looked like the razor which the defendant used in the commission of the crime. Dixie Hood testified: "I could not say that this is the same razor. It looks just like that one. I saw the razor there. It had a kind of brown looking handle or celluloid. It looked like a brown celluloid handle to me." Witness Englebert identified the razor as being the one turned over to the police authorities at the scene of the homicide. It appears without dispute that the crime was committed with a razor, and it would make no material difference whether or not the weapon it was sought to identify was the particular razor with which the homicide was committed. The identification was sufficient to authorize the jury to decide, under the evidence relative to identification, whether or not it was the identical weapon used by the defendant.

4. Ground 4 assigns error because, in his examination of the witness Lucile Barrett, the judge stated within the hearing of the jury: "Gentlemen, of course, she is rather young, rather undeveloped. At the same time, I believe the jury can see her, and they have heard her responses; and I will let her tell whatever you desire to ask her before the jury, and they can put whatever weight they see fit to give it on her testimony, what she says." The objection is that this statement expressed an OPINION that the witness would be permitted to tell whatever the state desired to ask her and such would be competent for the jury's consideration; that such remarks were an expression of opinion and conclusion by the court, and tended to prejudice this movant in the minds of the jury and give undue weight upon such testimony. The objection is without merit. There was no objection to any portion of the testimony by this witness, and the statement by the court that the jury "can put whatever weight they see fit to give it on her testimony, what she says," was substantially what the court tells every jury in such a case, that the jury gives to the testimony just such weight as they think it entitled.

5. Ground 5 assigns error on the refusal of the court to allow Jessie Lively to testify. It appears without dispute that Jessie Lively was the wife of the defendant and therefore she was an incompetent witness for him. The record discloses that he was married in 1903 to Jessie Sweat (Jessie Lively); he was never divorced from this wife, but lived with her about fourteen years, during which period they had seven children. He then left her, and began to live with the woman whom he killed at the same time he killed Mrs. Kell (for which latter homicide he was on trial).

6. In the sixth ground plaintiff in error sets out the entire charge to the jury, and then assigns error: (a) Because the court omitted to charge that to the indictment the defendant entered a plea of not guilty, forming the issue which they were to try. (b) Because the court omitted to instruct the jury that the burden rested upon the state to prove each and every material allegation in the indictment beyond a reasonable doubt. (c) Because the court omitted to instruct the jury as to the credibility of witnesses and the weight to be given their testimony, instructing them essentially that the credibility of witnesses was a question for the jury to determine from the appearance of the witness on the stand his interest or want of interest in the outcome of the case, his temper, feeling, or bias, if any was shown, his demeanor while testifying, his apparent intelligence or lack of intelligence, his means of information, etc. (d) Because the court erred in omitting to charge the jury on an essential element of the crime charged in the indictment, to wit, intent is an essential element of the offense charged in the indictment; and if the act and the consequence be shown, and it appears that the party so charged in the indictment was of such unsound mind that he was incapable of having intent, a crime would not exist; that should the jury so believe this movant to have been of unsound mind at the time of the commission of the offense charged in the indictment or prior thereto, they should acquit; and that if one be of unsound mind, he is incapable of criminal intent, a necessary element in the offense charged in the indictment, and criminal intent cannot be charged to one of unsound mind. (e) Because the court omitted to charge that before they could find the movant guilty of the offense charged, there must be a union of joint operation of action and intention. (f) Because the court omitted to charge that the evidence of insanity could be considered with the other evidence of the case, in determining whether or not the defendant was guilty beyond a reasonable doubt; and that if in considering all the evidence including...