Phillips v. State
| Decision Date | 17 July 1919 |
| Docket Number | 1149. |
| Citation | 99 S.E. 874,149 Ga. 255 |
| Parties | PHILLIPS v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court..
The remarks of the solicitor general to the court, while insisting that certain testimony was relevant and material and upon which counsel for the defendant based a motion for a mistrial, were not of such character as to prejudice the jury against the defendant, so as to require the grant of a mistrial or a rebuke of the solicitor general by the court.
Nor did the court err in refusing to declare a mistrial, on motion made by the defendant's counsel, because of repeated offers by the solicitor general to prove the good character of the decedent, which had not been put in issue, after the court had ruled that such evidence was inadmissible.
Although the defendant's statement in part was that he heard the decedent, just before the shooting which resulted in the death of the latter, use to and of the wife of the defendant vile, opprobrious, and insulting language, such as "I will kill you, you damn bitch," it was error for the court to allow numerous witnesses for the state, who had known the decedent intimately and for a number of years, to testify, over objections properly made, that they had never heard him use any vulgar or profane language.
Inasmuch as the judgment of the court below refusing a new trial is reversed upon another ground, it is unnecessary to decide whether the court erred in overruling a motion for a mistrial, made by the defendant, on the ground that certain alleged misconduct on the part of the spectators in the courtroom during the trial tended to prejudice the defense in the minds of the jury, as it is not probable that such an incident will occur at the next trial.
When all that the court charged the jury upon the subject of reasonable doubt is considered, that part of the charge upon this subject which is excepted to was not open to the criticism made upon it.
While one sentence, separated from its context in the court's charge upon the subject of murder, was objectionable, the error was not of such character as to cause the grant of a new trial; it being clear, when the court's entire charge upon the subject of murder is considered, that the jury could not have been misled by the single sentence embodying the error referred to.
The court's charge upon the subject of voluntary manslaughter was not error for any of the reasons assigned.
The court did not err in refusing to give the charge requested by counsel for the defendant upon the subject of good character as the charge actually given sufficiently covered this subject.
The evidence upon the subject of title to the strip of land upon which it is insisted in the motion for a new trial that the decedent was committing a trespass at the time of the altercation between him and the defendant's wife was not sufficiently definite to require the court to submit the question of the title to the strip of land or the question of trespass.
The court did not err in refusing the requests to charge, certain of them being unauthorized by the evidence, and the others where not sufficiently covered by the general charge, not being in themselves altogether sound.
The assignments of error not specifically dealt with show no ground for the grant of a new trial.
Error from Superior Court, Bibb County; H. A. Mathews, Judge.
J. Q Phillips was convicted of murder, a motion for new trial was overruled, and he brings error. Reversed.
W. A. McClellan, T. J. Cochran, and Napier & Maynard, all of Macon, for plaintiff in error.
John P. Ross, Sol. Gen., of Macon, Clifford Waiker, Atty. Gen., and M. C. Bennet, of Atlanta, for the State.
J. Q. Phillips was tried under an indictment charging him with the murder of Walter A. Fendt on the 5th day of May, 1918. Upon the trial the jury returned a verdict of guilty, with a recommendation. The defendant made a motion for a new trial, which was overruled, and to this judgment he excepted.
1. During the progress of the trial, while a witness for the state was on the stand, counsel for the state, addressing the witness, said:
"After you vacated the house in which the defendant lived at the time Mr. Fendt was shot, state whether or not any inquiry was made of you as to the right of Fendt and his family to use that alley along the rear of the two lots."
Defendant's counsel objected on the ground that the evidence sought was irrelevant, and the solicitor general said:
Thereupon the defendant's counsel moved for a mistrial on account of the statement of the solicitor general, contending that the evidence was hearsay and could not bind the defendant. The court overruled the motion, and the defendant excepted to this ruling. This ground is without merit. Whether the solicitor general was correct or not in the assumption that the wife told the husband of the conversation referred to the statement of the contention to the court could not be treated as a ground for declaring a mistrial. The solicitor general did not state as a fact that the wife told the husband what had happened, etc., but stated that the jury "were presumed to know the wife told the husband," etc. The jury is presumed to be...
To continue reading
Request your trial