Smith v. State
| Decision Date | 04 January 1945 |
| Docket Number | 15039. |
| Citation | 33 S.E.2d 338,198 Ga. 849 |
| Parties | SMITH v. STATE. |
| Court | Georgia Supreme Court |
Rehearing Denied Feb. 9, 1945.
Syllabus by the Court.
1. There was no abuse of discretion in refusing to continue a murder case on the ground that appointed counsel had not had sufficient time to investigate and properly prepare the defense, it appearing that the indictment was returned on June 29, 1944, counsel appointed on July 5, 1944, and the case assigned for trial on July 10, 1944.
(a) Nor because the accused had not had sufficient time since the alleged offense was committed (June 25, 1944) to make necessary arrangements with counsel of his choice;
(b) Nor on account of the absence of a physician, it not being shown that were he present he would deliver any testimony material to the defense;
(c) Nor because of the absence of another party, it not being made to appear that if present the absent party would have testified to any fact favorable to the accused.
2. A new trial will not be granted because of the following charge of the trial judge: 'The law presumes every homicide to be felonious until the contrary appears from circumstances of alleviation, or excuse, or justification, and it is incumbent on the prisoner to make out, by a preponderance of the evidence, such circumstances to the satisfaction of the jury unless they arise out of evidence produced against him.'
3. Provocation by words, threats, menaces, or contemptuous gestures shall in no case be sufficient to free the person killing from the guilt and crime of murder.
4. The indictment charging the accused with murder by the use of 'his hands, fists, and other blunt instrument to the grand jury unknown,' and the evidence being such as to authorize the jury to believe that the deceased came to her death as the result of blows from some blunt instrument, it was not erroneous to charge the jury the contentions of the State that the accused killed the deceased in the indictment 'with an instrument that, in the manner in which it was used, was a weapon likely to produce death.'
5. The verdict was supported by the evidence.
E. V Smith was indicted for the murder of his wife by striking and beating her to death with 'his hands, fists, and other blunt instrument, the nature and kind thereof being unknown to the grand jurors,' and found guilty as charged. A witness, Mrs. Cole, who lived next door to the Smiths and near their home, testified that on Saturday afternoon, before the final beating given by the accused on Sunday, she saw Mrs. Smith sitting on a can in their garage, and the accused was standing in front of her. He said something to her, which the witness did not understand, and then he struck her twice. Mrs. Smith was crying. The next afternoon, after he and his wife had returned from a fishing trip with others, she saw them, while she was in her own back yard, by looking through a window in the home of the Smiths; Mrs. Smith was sitting on a cot, and she saw the accused strike her about the face and head several times, and then come out in his back yard. In a few minutes Mrs. Smith came out. She was bleeding, and sat down by the well. The accused said to her, 'I told you to go back in the house.' Mrs. Smith said nothing. The third time he told her to go back, and he then struck her in the head and knocked her back against the well several times, This witness testified that, after that, the accused and his wife went to a hospital, and after they got back, about 9:30 that night, she heard the Smiths arguing; that the accused then left the house, telling his wife that he was going back to Macon. His wife said: 'I want you to get a good look at my face; if you can leave me in this fix, go ahead.' The accused then said something about his wife's getting a divorce, and then got in his car and left.
Other witnesses living in the house with Mrs. Cole testified to the same effect with regard to the accused beating his wife and knocking her against the curbing of the well. A witness testified that the accused said: 'I am going to tell you one thing, if I ever get to be a single man again, I will never marry again, and, from the looks of things now, it won't be long.' Another witness, Davis, testified: The embalmer testified: 'She [the deceased] had two small scratches, or bruised area as if caused by gravel, at the right hand corner of the right eye, the outer corner of the right eye, also three-fourths of an inch at the outer edge of the left eyebrow, which had been sutured, and the bruise extended to the outer corner of the left eye; a bruise on the right side of the upper lip a half or an inch long; a bruise on the left ear; a bruise on the left arm about six inches below the shoulder covering about two inches square area; six small bruises on the right shoulder; a bruised knuckle of the right hand; an old bruise about four inches in diameter on the side of the right hip; a small bruise on the left thigh, and grass stains on the right knee.'
Dr. Jones, head of the science department of Oglethorpe University, who made an autopsy on the body of the deceased, testified: This witness also testified to obtaining specimens of blood from the linoleum and from the living room, and that, while he did not claim to be an expert in distinguishing chicken blood from human blood, he said the specimens obtained were blood; and then further testified: While there was evidence that the deceased killed some chickens, there was none that she killed them on the porch or in the house. There was testimony to the effect that the accused weighed about 200 pounds, was about five feet and ten inches, or maybe six feet tall, and looked to be about 38 or 40 years old; and that his wife was small.
Upon conviction the defendant made a motion for new trial, which he amended. These grounds of the motion are discussed in the court's opinion which follows this statement of the facts; also the charges of the trial judge are ruled upon.
L. W. Nance and Leward Hightower, both of Griffin, and H. A. Allen, of Atlanta (A. L. Henson, of Atlanta, on motion for rehearing only), for plaintiff in error.
F. E. Strickland, Sol. Gen., of Griffin, T. Grady Head, Atty. Gen., and Maud Saunders, of Atlanta, for defendant in error.
1. Complaint is made that the trial judge, on the call of the case, refused to continue it. It is recited in the motion for new trial that one ground of the motion to continue was, that the attorneys representing the accused were appointed by the court and were not the counsel of his choice; that the accused did not have sufficient time since the alleged offense was committed, and since his indictment, to make the necessary arrangements with the attorneys of his choice; and on the further ground that appointed counsel did not have sufficient time to investigate and properly prepare his defense. Statements to that effect were made by counsel in their place, were not contradicted, and no evidence was offered on the motion to continue. The crime was alleged to have been committed on June 25, 1944; the indictment was returned on June 29, 1944; and the case assigned for trial on July 10, 1944. Counsel were appointed on Wednesday preceding the call of the case on the following Monday. It is not averred that counsel so appointed were incompetent, or that they were not faithful in the discharge of their duty. It is not shown that the accused had employed other counsel, or that, if given further time, he would have employed other counsel. The bare statement in the motion to continue that appointed counsel had not had sufficient time to investigate and prepare the defense, was a mere conclusion. Questions of this nature must of necessity be entrusted to the discretion of the trial judge. It does not appear that he abused his discretion in overruling the motion to continue on this ground. Compare Cannady v. State, 190 Ga. 227, 9 S.E.2d 241.
Another ground of the motion to continue, as recited in the motion for new trial, was on account of the absence of...
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