Mims v. State, 12962.

• Decision Date: 15 September 1939
• Docket Number: No. 12962.,12962.
• Citation: 4 S.E.2d 831
• Parties: MIMS. v. STATE.
• Court: Georgia Supreme Court

4 S.E.2d 831

MIMS.

v.STATE.

No. 12962.

Supreme Court of Georgia.

Sept. 15, 1939.

Sy11abus by the Court.

1. The court did not abuse its discretion in refusing a continuance to the defendant on the ground of the absence of a witness, where the defendant testified that he did not "need" such testimony, and it did not appear where and when the witness could be located.

2. The alleged improper argument and improper references to the defendant by the solicitor-general show no ground for a new trial, where there was no motion to declare a mistrial or any objection at the trial to such statements.

3. The court did not err in failing, without request, to charge the jury on the law of confessions, where the testimony showed at most only an inculpatory admission by the defendant, and where the independent evidence was sufficient to sustain the conviction.

4. The court did not err in instructing the jury to take the law of the case from the court, apply it to the facts as they might find them to be, and reach a verdict therefrom.

5. The court did not err in refusing a request to charge stating the ride as to the power of the jury in imposing punishment for murder, since such rule was covered by the charge as given.

6. The record does not support the ground that there was a substantial variance between the probata and the allegata as to the name of the deceased as alleged in the indictment.

7. Under the evidence, the law of mutual combat as applied to voluntary manslaughter was not involved, and the court did not err in failing to charge the jury as to that principle.

Error from Superior Court, Bibb County; W. A. McClellan, Judge.

Will Mims was convicted of murder, and he brings error.

Judgment affirmed.

J. W. Barnett and Coleman Bloodworth, both of Macon, O. M. Duke, of Flovilla, and Benjamin B. Garland, of Jackson, for plaintiff in error.

Chas. H. Garrett, Sol. Gen., of Macon, Ellis G. Arnall, Atty. Gen, and Duke Davis and E. J. Clower, Asst. Attys. Gen, for the State.

JENKINS, Justice.

Will Mims was found guilty, without a recommendation, of the murder of Dave F. Mitchell. The testimony for the State showed that the defendant and a woman with whom he had been living engaged in an argument in a city street; that the deceased said something as to the defendant cursing on the street; and after some altercation in which the hat of the defendant was knocked off, the deceased went down the street, and the defendant followed him. The defendant was under the influence of liquor, and there was some evidence to indicate that the deceased was in a similar condition. After reaching a point down the street about a block distant, the de-ceased told a witness that a negro had hit him and knocked his hat off, and asked the witness where he could find or call the police. The witness advised him to go home; and the deceased turned back up the street until he reached a bridge, about three-quarters of a block from where the trouble began. The route that he thus took was on the way to his home; and there was no evidence that he knew the defendant was following him, or that he knew he would meet the defendant again. The defendant and the deceased met at the bridge, where the defendant inflicted upon him a. mortal wound with a knife. According to the evidence of another witness, the defendant "picked up the hat [of the deceased] and slung it, and went on down the street behind this white man, and at the bridge they tied up. [He] grabbed the white man. [The woman] went down there, and [the defendant] flung her loose from him. They tusseled around about a minute or a half, and I heard him [the. deceased] holler 'Oh Lordy' twice. * * * It looked like they grabbed each other, hugging, to me." The deceased fell, stabbed in the neck, and soon died. Another witness testified on direct examination that the defendant had something shiny in his hand, a razor or pocket-knife, and threatened to cut the throat of the woman with whom he had been quarreling; that against her protest he went down the street in the direction in which the deceased was going, and "he caught up with the white man, and I saw him get in the road, and he was doing like that--hitting--and after a while the white man turned and hollered. * * * He was nearer the right side of [the] street where they were tusseling, and when he said 'Oh Lordy' he was going in that direction. I could see the white man's hands going up like that." There was no evidence as to any weapon being found on or near the deceased; and no evidence that he was armed. On cross-examination, the last-mentioned witness testified: "I don't know how the fight started. * * * They were tied up; just doing like that--fighting. It started when [the defendant] went down there, and when he got down there he walked right side of the bridge, and they stepped back in the road, and they went to throwing up their hands. He stepped out of the road and stepped right back in the road. They were in the road tied up when I saw the white man the next time. They were fighting."

In his statement to the jury, the defendant said that before the cutting he and the deceased were "fighting, " that he did not know who struck first, "but I know our hands went up together."

1. The court did not abuse its discretion in refusing a continuance to the defendant on account of the absence of a subpoenaed witness, where at the hearing on the motion the defendant testified, "I don't really need her as a witness, " and where it appeared only that the witness had left the county and gone somewhere in Atlanta, without any information as to where and when she could be found. See Power v. State, 8 Ga.App. 408 (2), 69 S.E. 315.

2. "When improper argument to the jury is made by an attorney for one of the parties, it is necessary, in order to make the same a basis for review, that opposing counsel should make objection to such argument or invoke some ruling or instruction with reference thereto by the court, " although "it is not essential that a motion for mistrial should be made." Brooks v. State, 183 Ga. 466, 188 S.E. 711, 108 A.L.R. 752; Benton v. State, 185 Ga. 254, 257 (7), 194 S.E. 166. Accordingly, it was not error to refuse a new trial on the ground that the solicitor-general improperly referred in his argument to an alleged confession made by the defendant in a hearing on his motion for continuance, but not introduced in evidence. For similar reasons, it was not error to refuse a new trial because of questions by the solicitor-general, to which no objection was made, where in questioning two witnesses he referred to the defendant by the alleged prejudicial nicknames of "Whiskey" and "Rags."

3. The court did not err, in the absence of a request, in failing to charge the jury on the law of confessions, where...