Syllabus
by the Court.
"An
indictment for murder charged that the accused shot and
killed the named decedent 'with a certain gun' which
the accused then and there held. On the trial it appeared
that the accused committed the homicide by shooting the
decedent with a pistol. Held, that it was not cause
for a new trial that the court told the jury that a pistol is
a gun. State v. Barrington, 198 Mo. 23, 95 S.W. 235."
Hill v. State, 147 Ga. 650(1), 95 S.E. 213. See
Burney v. State, 22 Ga.App. 622(1), 97 S.E. 85, and
cases cited in the opinion. The rulings in the above cases
dispose of grounds 4 and 5 of the motion for a new trial.
Counsel for the plaintiff in error request that we certify
this case to the Supreme Court, in order that the above
decisions may be "reviewed and overruled." We think
this would be a useless consumption of time.
"In
charging section 70 of the Penal Code, failure to explain to
the jury the meaning of the word 'felony,' used
therein, is not cause for a new trial, in the absence of an
appropriate and timely request so to do." Smith v
State, 23 Ga.App. 541(4), 99 S.E. 142 citing
Pressley v. State, 132 Ga. 64(3), 65, 63 S.E. 784;
Pickens v. State, 132 Ga. 46, 63 S.E. 783;
Jordon v. State, 16 Ga.App. 393, 400, 85 S.E. 455.
Under the rulings in the above cases there is no merit in
special ground 6 of the motion for a new trial.
In
Cain v. State, 7 Ga.App. 24, 65 S.E. 1069, this court
said: "It is well settled by repeated rulings of the
Supreme Court and this court that on a trial for murder, if
there is anything deducible from the evidence or the
defendant's statement that would tend to show
manslaughter, voluntary or involuntary, it is the duty of the
court to instruct the jury fully on the law of manslaughter.
Crawford v. State, 12 Ga. 142(6); Jackson v
State, 76 Ga. 473; Wynne v. State, 56 Ga. 113;
Bell v. State, 130 Ga. 865, 61 S.E. 996;
Strickland v. State, 133 Ga. 76, 65 S.E. 148;
Pyle v. State, 4 Ga.App. 811; 62 S.E. 540. In the
Crawford Case, supra, the court strongly expresses itself on
the subject, as follows: 'When a defendant is put upon
trial for murder, and there is any doubt as to the grade of
homicide of which he is guilty, it is the duty of the court
clearly and distinctly to instruct the jury as to the law
defining the several grades of homicide as recognized by the
Penal Code, and then leave it to the jury to find from the
evidence of what particular grade he is guilty.' In
Jackson v. State, supra, the court uses still stronger
language, and holds that 'where there is evidence
sufficient to raise a doubt, however slight, upon the point
whether the case is murder or manslaughter, voluntary or
involuntary, the court should instruct the jury upon these
grades of manslaughter as well as murder.' " Under
these rulings as applied to the facts of this case, the trial
judge did not err in charging on voluntary manslaughter or
upon a mutual intent to fight.
Under
all the facts of this case it was not error harmful to the
accused for the judge to fail to give in charge to the jury
section 73 of the Penal Code of 1910.
The
following principles are thoroughly established in this
state:
(a)
"Declarations of a witness after trial, at variance
with his sworn testimony, even when made under oath and
explicitly asserting that his testimony on the trial was
false, do not constitute a cause for a new trial.
Lasseter v. Simpson, 78 Ga. 61 (3 S.E. 243);
Munro v. Moody, 78 Ga. 127 (2 S.E. 688);
Jordon v. State, 124 Ga. 417(2) (52 S.E. 768);
Hardy v. State, 117 Ga. 40 (43 S.E. 434);
Clark v. State, 117 Ga. 254(8) (43 S.E. 853), and
cases there cited. Hayes v. State, 16 Ga.App. 334
335(2) (85 S.E. 253); Civil Code, § 5961." Smarr v.
Kerlin, 21 Ga.App. 813(2), 95 S.E. 306.
(b)
" 'Though the witness sought to be impeached by
newly discovered evidence was the only witness against the
prisoner upon a vital point in the case, if the sole effect
of the evidence would be to impeach the witness a new trial
will not be granted.' Arwood v. State, 59 Ga.
391(1); Levining v. State, 13 Ga. 513(1); Wright
v. State, 34 Ga. 110(2); Jackson v. State, 93
Ga. 190, 18 S.E. 401; Haynes v. State, 18 Ga.App.
741(3), 742, 743, 90 S.E. 485, and cases cited." Key
v. State, 21 Ga.App. 795(1), 95 S.E. 269.
Under
the above rulings there is no merit in the tenth ground of
the amendment to the motion for a new trial.
In
connection with the immediately preceding paragraph, we call
attention to the following words of Judge Starnes, who
delivered the opinion of the court in Levining v
State, 13 Ga. 513: "If it be true that an innocent
man has been convicted upon false testimony, and witnesses
have since...
