Smithey v. State, 22103
| Decision Date | 05 September 1963 |
| Docket Number | No. 22103,22103 |
| Citation | 132 S.E.2d 666,219 Ga. 247 |
| Parties | Betty SMITHEY v. The STATE. |
| Court | Georgia Supreme Court |
Charles L. Pickell, Dalton, for plaintiff in error.
Earl B. Self, Sol. Gen., Summerville, Eugene Cook, Atty. Gen., Rubye G. Jackson, Asst. Atty. Gen., Atlanta, for defendant in error.
Syllabus Opinion by the Court
This case involves the crime of murder. The defendant was indicted and convicted of killing her husband by shooting him with a certain pistol with malice aforethought. The accused admitted the killing to an investigating officer but added certain mitigating circumstances, and in her unsworn statement, offered further circumstances to show justification or mitigation by reason of fear of her husband who had cut her and beat her before and who had threatened to kill her. There was, however, other testimony by State's witnesses showing that the killing was without justification or mitigation. The jury returned a verdict of guilty with a recommendation of mercy. The exception is to the overruling of a motion for new trial as amended. Held:
1. Whether or not the evidence showing the defendant had spent nights in the room with another man unlawfully put her character in evidence (Code § 38-202; Brown v. State, 141 Ga. 5(3), 80 S.E. 320), it would not require a new trial here because other evidence showing the same facts was introduced without objection. Savannah Electric Co. v. Crawford, 130 Ga. 421(4), 60 S.E. 1056; Whitley v. State, 188 Ga. 177, 3 S.E.2d 588. This ruling also applies to amended ground 3 where the allowance of testimony of a doctor concerning a female child was objected to, and yet other evidence of the same import was admitted without objection.
2. The second amended ground is too indefinite and incomplete to enable this court to rule thereon. It complains because of the ruling disallowing testimony of a State's witness on cross examination. The question was 'Whatever date that might happen to be on, on Monday after this happened, she's been in jail down here ever since?' The expected answer was 'Yes, she has been in jail here ever since the Monday after this happened.' Apparently it was intended to rebut evidence of flight, but the indefiniteness of 'ever since the Monday after this happened' leaves unaccounted for the time between when it happened and the Monday referred to in the question. There is no merit in this ground.
3. The exception in amended ground 4 is to an excerpt of the charge wherein it is stated that if the State proves or the defendant admits the killing in the manner charged, the law presumes malice and the burden is cast upon the accused to justify the killing. The charge is subject to the attack because it failed to conform to the law in that it should have stated that if the State's evidence showing the killing in the manner...
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Jackson v. State, 25258
...the defendant, and these enumerations of error are without merit. Whippler v. State, 218 Ga. 198, 204, 126 S.E.2d 744; Smithey v. State, 219 Ga. 247(1), 132 S.E.2d 666; Salisbury v. State, 222 Ga. 549(2), 150 S.E.2d 2. Enumerations of error numbers 7, 8 and 9 complain of the refusal of the ......
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Patterson v. State
...being, the law presumes the intent to kill. This presumption may be rebutted." a. Appellant argues first that under Smithey v. State, 219 Ga. 247, 132 S.E.2d 666 (1963) and Jordon v. State, 232 Ga. 749, 755, 208 S.E.2d 840 (1974) the presumption of malice does not apply where the state's ev......
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Brown v. State
...Maddox v. State, 118 Ga.App. 678(2), 164 S.E.2d 861. And see Salisbury v. State, 222 Ga. 549(2), 150 S.E.2d 819; Smithey v. State, 219 Ga. 247(1), 132 S.E.2d 666. 'Allowing the introduction of illegal evidence offered to establish particular facts is not cause for a new trial, when such fac......
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Jordon v. State, 28954
...Ga. 849(2), 124 S.E. 532; Eich v. State, 169 Ga. 425(4), 150 S.E. 579; Miller v. State, 184 Ga. 336, 338, 191 S.E. 115; Smithey v. State, 219 Ga. 247(3), 132 S.E.2d 666; Williams v. Johnson, 225 Ga. 654(3), 171 S.E.2d 145. Under the facts of the present case the excerpts from the charge com......