Smith v. State

• Citation: 97 S.E. 454,23 Ga.App. 76
• Decision Date: 16 November 1918
• Docket Number: 9791.
• Parties: SMITH v. STATE.
• Court: Georgia Court of Appeals

97 S.E. 454

23 Ga.App. 76

SMITH v. STATE.

No. 9791.

Court of Appeals of Georgia, Second Division

November 16, 1918

Syllabus by the Court.

Grounds 4 and 5 of the motion for new trial cannot be considered by this court, because it does not appear in the former that any objection was made to the admission of the evidence and passed upon by the court at the time the evidence was offered. Cooper v. Chamblee, 114 Ga. 116, 39 S.E 917 (1); Tilley v. McJunkin, 116 Ga. 426, 42 S.E 741 (1); City of Atlanta v. Sciple, 19 Ga.App. 694 92 S.E. 28 (1); and cases cited. Ground 5 cannot be determined without reference to other parts of the record. "No ground of a motion for new trial which is not complete and understandable without resorting to an examination of the brief of evidence or the charge of the court will be considered as presenting a question for consideration by this court." Southern Ry. Co. v Williams, 19 Ga.App. 544, 91 S.E. 1001 (4).

Ground 6 of the motion for a new trial is specifically abandoned by plaintiff in error.

The admission of dying declarations is complained of in ground 7. If it could be said that the admissibility of these dying declarations was doubtful, "it has long been the rule in this state, when the admissibility of evidence is doubtful to admit it and leave its weight and effect to be determined by the jury." Goodman v. State, 122 Ga. 118, 49 S.E. 925, and cases cited; Hornsby v. Jensen, 12 Ga.App. 697, 78 S.E. 267 (1). The preliminary evidence was sufficient to authorize the admission of these dying declarations, leaving it to the jury, under proper instructions, to determine if they were made in articulo mortis, and if the deceased was conscious of her condition. Young v. State, 114 Ga. 849 (2), 850 (2), 40 S.E. 1000; Dumas v. State, 62 Ga. 59 (2). But if it be conceded that error was committed in admitting the testimony set out in this ground of the motion for a new trial, it was not such a material error as would authorize this court to grant a new trial, for practically the same evidence from another witness was before the jury. Matthews v. Richards, 19 Ga.App. 489, 91 S.E. 914 (2), and cases cited.

The defendant in his statement at the trial said that the deceased had cut him, and at the time he fired she was advancing on him with a knife. A witness swore: "I remember the night Ida Davis [the deceased] got shot. * * * I went to the house after the shooting. * * * I did not see nothing there but a knife. Ida was lying there on the floor. The knife was open. It was about that far from her hand (indicating), right near her right hand." It was not shown that the knife was one likely to produce death. In the case of Cain v. State, 7 Ga.App. 24, 65 S.E. 1069 we find the following: "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.' " In Tanner v. State, 145 Ga. 72, 88 S.E. 555, the Supreme Court said: "The controlling question in the case is whether the court should have charged the law of voluntary manslaughter. The rule is well settled that, where under the evidence the law of voluntary manslaughter is applicable, it is the duty of the court to charge the law upon that subject. Bell v. State, 130 Ga. 865 (61 S.E. 996); Strickland v. State, 133 Ga. 76 (65...