Von Pollnitz v. State
| Decision Date | 10 March 1893 |
| Citation | 18 S.E. 301,92 Ga. 16 |
| Parties | VON POLLNITZ v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. What the deceased said at the door of the room in which she was beaten, on coming out immediately after the beating took place, was admissible in evidence as a part of the resgestae.
2. The sayings of the deceased, admitted as dying declarations, and not objected to at the trial, were properly received. This court, in the absence of anything showing the contrary, will presume that the trial judge did his duty in passing upon the admissibility of such evidence as a preliminary question before allowing it to go to the jury.
3. A practicing physician is presumptively competent to give evidence as an expert touching the probable effect of wounds such as other witnesses describe, with reference to their adequacy and tendency to produce death. No question was raised as to whether the examination should have been on a hypothetical, rather than on the actual, case.
4. The evidence showing that the manner of inflicting the mortal wounds was by striking, throwing down, and stamping upon the deceased,--she being a woman probably in a pregnant condition, and her assailant being her husband,--and there being no provocation shown, and no mitigating circumstances and he, in his statement to the court and jury, denying that he used any violence, the failure of the court to charge the jury upon the law of manslaughter, voluntary or involuntary was not error.
5. That the solicitor general used grossly improper language touching the defendant, in his argument to the jury, is not cause for a new trial; no objection being made thereto by the accused or his counsel at the time, and no ruling of the court thereon being invoked or made.
6. The evidence warranted the verdict, and there was no error in denying a new trial.
Error from superior court, Decatur county; B. B. Bower, Judge.
J. R. Von Pollnitz was convicted of murder, and a new trial denied. Defendant brings error. Affirmed.
Frank Harrell and A. H. Russell, for plaintiff in error.
W. N. Spence, Sol. Gen., and J. M. Terrell, Atty. Gen., for the State.
1. The deadly assault was made in a closed room in a boarding house,--the room occupied by Von Pollnitz and his wife,--an though some of the blows, as well as the outcry of the wife, were heard by one or more of the witnesses, there was no eyewitness to the infliction of the blows. Immediately after the beating took place, the door of the room was opened, and the wife, on emerging from it, made certain declarations, which were admitted in evidence. These declarations were a part of the resgestae, and as such were competent evidence.
2. Certain sayings of the deceased were admitted as dying declarations. They were not objected to, and seem to have been properly received. It is contended that the trial judge did not pass upon their admissibility, as a preliminary question, before allowing them to go to the jury. It does not affirmatively appear that he did or did not. It was his duty...
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