Rouse v. State

• Citation: 135 Ga. 227,69 S.E. 180
• Parties: ROUSE v. STATE.
• Decision Date: 12 October 1910
• Court: Georgia Supreme Court

69 S.E. 180

(135 Ga. 227)

ROUSE

v.STATE.

Supreme Court of Georgia.

Oct. 12, 1910.

(Syllabus by the Court.)

1. Criminal Law (§§ 741, 763, 764^*)—Trial-Question for Jury—Weight of Expert Testimony—Instructions—Invading Province of Jury.

There being no statute prescribing the weight which shall be given to the testimony of an expert, what consideration such evidence is entitled to is a question solely for the jury.

(a) Under the principle announced in the preceding note, the following charge was error: "When the experience, honesty, and impartiality of the expert is undoubted by the jury, his testimony is entitled to great weight. It is not, however, so authoritative that the jury is bound to be governed by it. It is advisory merely, and such testimony is intended to assist you in coming to a correct conclusion." Smith v. State, 3 27 Ga. 56, 56 S. E. 110; Macon Railway & Light Co. v. Vining, 123 Ga. 770, 51 S. E. 719; Wall v. State, 112 Ga. 336, 37 S. E. 371; Owen v. Palmour, 111 Ga. 885 (3), 36 S. E. 969; Bourquin v. Bourquin, 110 Ga. 440 (3), 35 S. E. 710; Ryder v. State. 100 Ga. 528 (6), 28 S. E. 246, 38 L. R. A. 721. 62 Am. St. Rep. 334; Merritt v. State, 107 Ga. 675 (4), 34 S. E. 361; Phoenix Insurance Co. v. Gray, 113 Ga. 424, 3S S. E. 992; Calvin v. State, 118 Ga. 73, 44 S. E. 848; Smalls v. State, 6 Ga. App. 502, 65 S. E. 295.

(b) Such charge was error despite the fact that witnesses both for the state and for the defendant testified as experts on the trial of the case.

[Ed. Note.—For other eases, see Criminal Law, Cent. Dig. §§ 1713, 1745; Dec. Dig. §§ 741, 763, 764.*]

2. Criminal Law (§§ 736, 741*) — Trial — Questions for Court and Jury—Admissibility of Evidence—Weight of Evidence.

The question as to whether statements claimed to be part of the res gestae are admissible as such is a question of law, to be determined by the court; and if statements are admitted by the court as a part of the res gestae, the weight to be given them is a matter for determination by the jury. After the evidence has been admitted, it is error for the court to leave to the jury the question as to whether or not it is admissible, notwithstanding he may give in charge the proper rules by which the court should be guided in determining its admissibility. Southern Ry. Co. v. Brown, 126 Ga. 1 (5), 54 S. E. 911; Wheeler v. State. 112 Ga. 43 (6). 37 S. E. 126; Hotchkiss v. Newton, 10 Ga. 560 (5); Muller v. Rhuman, 62 Ga. 332 (6).

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 1219, 1220, 1701; Dee. Dig. §§ 736. 741.*]

3. Criminal Law (§ 786^2-*)—Trial—Instructions—Weight of Evidence.

As the jury has the right to believe the statement of the defendant in preference to the sworn testimony, it was error to charge the jury as follows: "If Rouse tells the jury in his statement that he shot Bailey to save his own life, the circumstances surrounding him at the time he shot you must gather from the sworn testimony and facts admitted and the defendant's statement."

[Ed. Note.—For other cases, see Criminal Law, Dec. Dig. § 786.*]

4. Homicide (§ 158*)—Evidence—Uncommu-nicated Threats.

Upon the trial of one for murder, evidence of threats made by the accused against the deceased, uncommunicated to the latter, are admissible in behalf of the state as tending to show malice on the part of the accused. Golatt v. State, 130 Ga. 18, 00 S. E. 107; Graham v. State, 125 Ga. 48. 53 S. E. 816: Warrick v. State, 125 Ga. 133, 53 S. E. 1027; Hixon v. State, 130 Ga. 479, 61 S. E. 14; Harris v. State, 109 Ga. 280, 34 S. E. 583.

(a) Threats made by the deceased against the defendant, uncommunicated before the homicide, are not generally admissible on the trial of a case involving the question as to whether or not the slayer was justified in taking the life of the deceased; but evidence of such threats is admissible when there is evidence tending to show that the deceased began the mortal conflict, and that the defendant killed him in self-defense; and when evidence of such threats is admitted, it may be considered to show the state of mind or feeling on the part of the deceased, and thus illustrate his conduct, and throw light upon his intention and purpose at the time of the homicide. McKinney v. Carmaek, 119 Ga. 467. 46 5. E. 719; Nix v. State. 120 Ga. 162, 47 S. E. 516.

(b) In view of the rulings above made as to the purpose for which uncommunicated threats may be admitted in evidence, it was error for the court to charge as follows: "If it appears from the testimony that any threats were made by 1 ho deceased or defendant, one regarding the other, then I charge you, unless threats, if any, are communicated, they may be considered along with the other testimony in the case to assist you in deciding who began the difficulty, and for no other purpose."

[Ed. Note.—For other oases, see Homicide, Cent. Dig. §§ 293-296; Dec. Dig. § 158.*]

5. Question Not Decided.

It is unnecessary to pass upon the ground of the motion for a new trial complaining that the court erred in refusing to grant a new trial on the motion of the plaintiff in error, based on the conduct of one of the jurors trying the ease, as such ground relates to a matter which will not likely be repeated on another trial.

6. Review on Appeal.

Except as ruled in the preceding notes, no error appears for any reason assigned requiring a new trial.

Fish, C. J., dissenting.

Error from Superior Court, Worth County; Frank Park, Judge.

William Rouse was convicted of murder, and he brings error. Reversed.

J. W. Walters & Sons, T. R. Terry, and R. S. Foy, for plaintiff in error.

W. E. Wooten, Sol. Gen....