Lott v. State

• Court: Georgia Court of Appeals
• Writing for the Court: BROYLES, J.
• Citation: Lott v. State, 18 Ga.App. 747, 90 S.E. 727 (Ga. App. 1916)
• Decision Date: 31 October 1916
• Docket Number: 7713.
• Parties: LOTT v. STATE.

90 S.E. 727

18 Ga.App. 747

LOTT v. STATE.

No. 7713.

Court of Appeals of Georgia

October 31, 1916

Rehearing Denied Nov. 16, 1916.

Syllabus by the Court.

The alleged newly discovered evidence is merely cumulative and impeaching in its character. It is evident, from an examination of both the brief of evidence in the record and this alleged newly discovered evidence, that the latter is not "newly discovered" at all, but that merely some additional witnesses have been "discovered" since the trial of the case who would, upon another trial, give testimony to the same effect as that of witnesses upon the former trial. Accordingly, the court did not err in overruling the grounds of the motion for a new trial which were based upon this alleged newly discovered evidence.

The court is not required to charge upon a theory of defense arising solely from the statement of the accused, in the absence of a timely written request so to charge. Hardin v. State, 107 Ga. 718, 33 S.E. 700; Baker v State, 111 Ga. 141, 36 S.E. 607; Gay v. State, 111 Ga. 649, 36 S.E. 857; Richards v. State, 114 Ga 834, 40 S.E. 1001; Smith v. State, 117 Ga. 259, 43 S.E. 703; Johnson v. State, 4 Ga.App. 59, 60 S.E 813(2). In this case the theory of involuntary manslaughter arises solely from the statement of the accused, and is in conflict with the evidence. The court, therefore, was not required to give in charge the law of involuntary manslaughter, in the absence of a timely written request. Johnson v. State, supra.

While there cannot be either murder or voluntary manslaughter without an intent to kill, yet where the weapon used by the slayer was a pocketknife, and he stabbed the deceased in the neck with it, the intent to kill may be presumed; and it was not necessary that the evidence should affirmatively show that the knife used was a weapon likely to produce death. Johnson v. State (3), supra. The two cases cited by counsel for the plaintiff in error (Wrye v. State, 99 Ga 34, 25 S.E. 610, and Warnack v. State, 3 Ga.App. 590, 60 S.E. 288), to sustain their contention that the court should have charged the law of involuntary manslaughter, although that theory of defense was raised solely by the defendant's statement, are not binding authorities upon this point, for the reason that the general statements in the decisions of those cases, which apparently so hold, are obiter; it appearing that in the Wrye Case there was a timely written request to give such a charge, and that in the Warnack Case the theory of involuntary manslaughter was raised not only by the defendant's statement, but also by the sworn testimony. Under this ruling there is no merit in the eighth, ninth, and tenth grounds of the motion for a new trial.

The following charge is complained of: "In all criminal cases the jury are the judges of the law and the facts; they take the law as it is given to them by the judge, the facts from the sworn testimony and the defendant's statement and, applying the law so given to the facts thus ascertained, make up their verdict." It is contended that the error in this charge is that the court limited the jury to a consideration of such facts as were ascertained from...