Mars v. State
| Decision Date | 15 October 1926 |
| Docket Number | 5278. |
| Citation | 135 S.E. 410,163 Ga. 43 |
| Parties | MARS v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
In the bill of exceptions error is assigned upon the fact that during the time the court had the motion for new trial under advisement an affidavit of J. M. Roberts was presented to the court without notice to movant or his counsel, and was ordered filed and made a part of the record in the case without service of the affidavit upon the defendant or his counsel. This assignment raises no question for determination by this court, inasmuch as neither the affidavit nor its substance was set forth in the bill of exceptions. There is an affidavit of J. M. Roberts in the record, but it is not in the bill of exceptions in any way identified as the affidavit to which reference is made in the assignment of error just stated.
One who is closely related to persons who assist the solicitor general in striking a jury in a criminal case is not incompetent, for that reason, to sit as a juror in that case.
Affidavits to show that one of the jurors was disqualified because of bias or prejudice were filed, but the juror sought to be impeached denied in substance the statements contained in these affidavits, and the court having decided that the juror was not disqualified, his holding will not be disturbed.
The court did not err in refusing to give to the jury a charge upon the subject of delusional insanity. Such a charge was unauthorized by the evidence.
Complaint is made of the admission in evidence of the following portion of the testimony of a witness for the state: The evidence does appear to be irrelevant and immaterial, but it does not appear to be harmful to the defendant.
In view of the ruling above that there is no evidence to authorize the charge on the subject of delusional insanity, the court did not err in refusing to permit a medical doctor as a witness to answer the following question propounded to him on cross-examination by movant's counsel: "When you talked to him [defendant], was he very much disturbed about the fact that he thought his wife was untrue to him?"
Movant's counsel propounded to the witness last referred to the following question: "If there was no cause for it [defendant's suspicion of the wife's infidelity], and she did not give him any reason to suspect her, and there was no cause, and as a matter of fact, but he simply contended as he did to you that she was untrue to him, or untrue to her marriage vow, would that in your opinion indicate that his mind was unsound on that one question?" The court, upon objection of state's counsel, refused to admit the answer to the question. Held, that this ruling was not error. The question propounded was not one for the opinion of a witness, though an expert, but was strictly a question for the jury. Besides, a medical expert could not possibly have formed an intelligent opinion as to this question without reference to other circumstances and facts. This ruling applies to the assignment of error in the ground of the motion for new trial next immediately following that here dealt with.
Movant's counsel propounded also the following question to the same witness referred to above: "Doctor, is it true that a man can be insane on some questions and kill somebody, and yet be perfectly sound about other questions?" To this question state's counsel objected on the ground that the witness had not qualified as a mental expert. The court sustained this objection. It is not stated in the ground whether the doctor referred to had qualified as a mental expert or not. Therefore it does not appear that this ruling of the court was error.
Error is assigned upon the following testimony, which was admitted over objection of defendant's counsel: The ruling admitting this testimony was not error, for a nonexpert witness could give his opinion as to the sanity of the accused, based upon conversation with him and, if it was incompetent for the witness to testify from his knowledge of him as a physician, because the witness was not a mental expert, that part of the testimony is not specially objected to. And, where the objection is to testimony as a whole, and a part of it is admissible, the admission of all of it will not be held to be error requiring the grant of a new trial.
The court did not err in refusing to permit the witness Dorminey to answer the following question of movant's counsel "In that conversation (which the solicitor general had just asked about, and to which Dr. Dorminey had sworn that he had with the defendant) did he appear and did his conversation indicate that he was in earnest in his belief that his wife was untrue to him?" This was not error, for the reasons stated in headnote 7 disposing of the assignments of error in grounds 8 and 9 of the motion for a new trial.
In ground 13 of the motion error is assigned upon the court's permitting a witness for the state to testify that he knew Mrs. Mars (the deceased). She worked in the mill. He knew her reputation for virtue and chastity in the community in which she lived, and it was good. Whether this testimony was objectionable or not at the time it was admitted is doubtful, but it was made material and relevant by portions of the defendant's statement; and, if it was error to admit it at first, the error was cured when the defendant made statements attacking the chastity of his wife.
The court charged the jury, in part, as follows: This charge was criticized upon the grounds: (a) Said charge told the jury that they had a right to recommend the defendant to the mercy of the court for any reason "that is satisfactory to yourselves." (b) Said charge was misleading, in that it instructed the jury that they could recommend the defendant to mercy "with or without a reason, *** arbitrarily," and also "for any reason that it satisfactory to yourselves." The charge was not error for either of the reasons stated.
The charge upon the subject of the form of the verdict was not error, when the entire charge upon that subject is considered.
The court did not err in failing to charge upon the subject of voluntary manslaughter, as this grade of homicide was not involved under the evidence; and, if it was involved under the prisoner's statement, the court was not required to charge upon it, in the absence of a pertinent written request.
Error is assigned upon the failure of the court to charge as follows: "The punishment for persons convicted of murder shall be death, but may be confinement in the penitentiary for life in the following cases: If the jury trying the case shall so recommend, *** and, if they do so recommend, such confinement in the penitentiary for life is not discretionary with the judge." The exception to this charge is without merit, in view of the court's actual charge; for the court instructed the jury as follows:
The charge of the court calling the attention of the jurors to the importance of their duties, and impressing upon them the duty of deciding fairly, from the evidence and the prisoner's statement, the issues involved, is not open to the criticism made upon it.
Additional Syllabus by Editorial Staff.
In murder prosecution, charge calling jurors' attention to importance of duty of deciding fairly from evidence and prisoner's statement held not error because not covering theories raised by state or defendant.
In murder prosecution, charge calling jurors' attention to importance of duty of deciding fairly from evidence and prisoner's statement held not error because it was applicable to no issues raised at trial.
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