Weldon v. State

• Decision Date: 16 November 1917
• Docket Number: 9185.
• Citation: 94 S.E. 326,21 Ga.App. 330
• Parties: WELDON v. STATE.
• Court: Georgia Court of Appeals

94 S.E. 326

21 Ga.App. 330

WELDON v. STATE.

No. 9185.

Court of Appeals of Georgia, Second Division

November 16, 1917

Syllabus by the Court.

The courts of last resort of this state have laid down the following general principles:

(a) "While it is the duty of the court, without request to present the particular defense upon which the defendant in a criminal prosecution relies, it is not necessary, in the absence of a request, to refer specifically to the particular testimony upon which that defense is based, or to inform the jury of the defendant's specific contentions. * * *" Groves v. State, 8 Ga.App. 691, 70 S.E. 93 (2). See, also, Central of Georgia Railway Company v. McKinney, 118 Ga. 535, 45 S.E. 430 (1); Williams v. State, 120 Ga. 870, 48 S.E. 368; Wrightsville & Tennille Railroad Co. v. Gornto, 129 Ga. 204, 58 S.E. 769 (3).

(b) If the substantial law covering the issues made by the pleadings and evidence is given in charge, and more specific instructions are desired, timely and appropriate written request therefor should be made. Anthony v. State, 6 Ga.App. 784, 65 S.E. 816 (3).

(c) "An omission to charge a proposition of law favorable to the accused cannot be taken advantage of by assigning error upon a wholly unobjectionable instruction given to the jury." Williams v. State, 120 Ga. 870, 48 S.E 368 (2). See, also, Winn v. Bridges, 144 Ga. 497, 87 S.E. 665 (3); Smith v. Brinson, 145 Ga. 407, 89 S.E 363 (2); Willis v. Hudspeth, 145 Ga. 439, 89 S.E. 427 (3); Killian v. State, 19 Ga.App. 750, 92 S.E. 227 (2).

(d) "That numerous instructions given by the court to the jury may not have been precisely and in every respect adjusted to the facts in evidence is not cause for a new trial, when it appears that these instructions were in themselves correct propositions of law, and that they contained nothing which could have misled the jury or in any way have tended to prevent their reaching a correct conclusion upon the real issues involved." Conley v. Buck, 100 Ga. 188, 28 S.E. 97 (3).

(e) "The judge should explain to the jury the meaning of technical terms which occur in his instructions, but a failure to do so will not generally be ground for a new trial, in the absence of an appropriate and timely written request for such explanation." Holmes v. Clisby, 121 Ga. 241, 48 S.E. 934, 104 Am.St.Rep. 103 (7). See, also. Pickens v. State, 132 Ga. 46 (1), 47, 63 S.E. 783.

(f) "It is not error for the judge in his charge to the jury to give cautionary instructions tending to impress upon them the gravity of the issues involved, where nothing is said in such instructions tending to prejudice the rights of the defendant or in any way to impress the jury with the idea that it is more important to vindicate the law by the conviction of the accused, if guilty, than it is to acquit him, if innocent." Lyles v. State, 130 Ga. 294, 60 S.E. 578 (5).

(g) "Whether a judge, by language used in his charge to the jury, violates the provisions of the Code by intimating or expressing an opinion as to what has been proved, will be determined in the light of the entire context." Morse v. State, 10 Ga.App. 61, 72 S.E. 534 (2). See, also, Everett v. State, 62 Ga. 65 (5); Nutzel v. State, 60 Ga. 264 (2).

(h) "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 ; Strickland v. State, 133 Ga. 76 ; Pyle v. State, 4 Ga.App. 811 ." Cain v. State, 7 Ga.App. 24, 65 S.E. 1069.

(i) "In the absence of a [timely] written request so to do, it is not error for the trial judge to fail to charge the law of the theory of a case presented solely by the prisoner's statement." Robinson v. State, 114 Ga. 56, 39 S.E. 862 (4). See, also, Grant v. State, 19 Ga.App. 229. 91 S.E. 338.

(j) "A charge, torn to pieces and scattered in disjointed fragments, may seem objectionable, although when put together and considered as a whole it may be perfectly sound. The full charge being in the record, what it lacks when divided is supplied when the parts are all united. United they stand, divided they fall." Brown et al. v. Matthews et al., 79 Ga. 1, 4 S.E. 13 (1); Partee v. State, 19 Ga.App. 759, 92 S.E. 306 (5, 6).

Applying the foregoing general principles to the grounds of the motion alleging error in the several excerpts from the charge, and considering all of these excerpts in the light of the entire charge, we find no error in any of these grounds which would authorize the granting of a new trial.

The sixteenth ground of the amended motion for a new trial complains that the court erred in recharging the jury solely on murder and voluntary manslaughter. According to the note of the presiding judge, "the recharge to the jury was given under these circumstances: The jury had been out for several hours and returned into court, and the judge inquired of the jury if they desired any further instruction on the laws. One of the jury responded by saying that the jury wished to be recharged on the subject of murder and manslaughter, and the recharge was limited to the request made by the jury." Under these circumstances there was no error in the judge limiting his recharge to the request made by the jury.

There was no error in admitting the evidence of witness Hix, as complained of in the eighteenth ground of the motion. The witness was telling what occurred during the progress of the killing, and this evidence was clearly admissible as part of the res gestæ. Pen. Code 1910, § 1024.

Under the particular facts of this case the admission of the evidence of Dr. Brown, as complained of in the nineteenth ground of the motion, was not erroneous.

The evidence of witness Walters, the admission of which is complained of in the twentieth ground of the motion for new trial, was not inadmissible for the reasons urged. "A witness may refresh and assist his memory by the use of any written instrument or memorandum, provided he finally speaks from his recollection thus refreshed, or is willing to swear positively from the paper." Civ. Code 1910, § 5873.

No error is distinctly alleged in the...