Wyatt v. State, 22933
| Decision Date | 20 April 1965 |
| Docket Number | No. 22933,22933 |
| Citation | 220 Ga. 867,142 S.E.2d 810 |
| Parties | Furlishous WYATT v. The STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. It is not error to overrule a motion for mistrial based upon a statement of a witness for the State that the defendant had shot the deceased and had gone when the witness arrived where the judge instructed the jury to disregard the testimony. Hall v. State, 213 Ga. 557, 100 S.E.2d 176; Kendrick v. Kendrick, 218 Ga. 460, 128 S.E.2d 496; Cherry v. State, No. 22826, 220 Ga. 695, 141 S.E.2d 412. The amended ground raising this question is without merit.
2. It was not error to overrule an objection to testimony relating to a confession upon the ground that it was not free and voluntary, where the witness had testified that it was free and voluntary. Hall v. State, 213 Ga. 557, 100 S.E.2d 176, supra.
3. Upon the trial of one charged with murder it was permissible to introduce a peace warrant the deceased had procured against the accused shortly before the killing since it showed motive, and the fact that it might also have incidentally shown bad character did not render it inadmissible. Tiller v. State, 196 Ga. 508(3), 26 S.E.2d 883; Whippler v. State, 218 Ga. 198(3), 126 S.E.2d 744. The objection to the testimony of the witness Gower as to the taking out of the peace warrant and the testimony of the police officer relating the statements made by the accused are likewise not meritorious for the same reason.
4. It is reversible error for the court to instruct the jury in a capital case that recommending mercy is a matter purely within the province of the jury, 'taking into consideration all the facts and circumstances of the case.' (Emphasis added.)
5. Where the evidence shows the killing and the only reason given by the accused was that the deceased had shot him before and on the occasion of the killing she had made some motion toward the glove compartment of her car, mutual combat is not involved and it was not error to fail to charge thereon. Code § 26-1007; Brannon v. State, 188 Ga. 15, 2 S.E.2d 654; Langford v. State, 212 Ga. 364, 93 S.E.2d 1.
6. Amended ground 8 is not unqualifiedly approved by the trial judge, and it therefore will not be considered by this court. Hatcher v. State, 176 Ga. 454(4), 168 S.E. 278; Dalton v. State, 215 Ga. 857(2), 113 S.E.2d 771.
7. The evidence supports the verdict and the general grounds are without merit.
The defendant was indicted, tried and convicted of uxoricide without a recommendation of mercy. The evidence shows the accused shot and killed his wife with a pistol after repeated verbal and physical battles resulting in the want of domestic tranquility between them, their final separation, and the taking out of a peace warrant to prevent him from harming her. The evidence also shows that thirteen months prior to the killing his wife had shot him nine times while he was asleep following an argument, although he did not seek to prosecute her for doing so but continued to live with her thereafter. The main defense was justifiable homicide by reason of fear for his life in that the accused stated his wife had previously threatened him and when he saw her in her car he thought she was reaching for the glove compartment when she saw him, and he did not know exactly what happened thereafter. Following the trial, a motion for new trial was duly made, amended, and after a hearing, overruled. The exception is to this judgment.
Fife & Thompson, J. Roger Thompson, Atlanta, for plaintiff in error.
Lewis R. Slaton, William T. Boyd, Sol. Gen., J. Walter LeCraw, Carter Goode, Atlanta, Paul Ginsberg, Eugene Cook, Atty. Gen., J. R. Parham, Asst. Atty. Gen., Atlanta, for defendant in error.
None of the headnotes require elaboration except 4. By a long line of full bench decisions, including Johnson v. State, 58 Ga. 491; Hill v. State, 72 Ga. 131; Barfield v. State, 179 Ga. 293, 175 S.E.2d 582; and Jennings v. State, 212 Ga. 58, 90 S.E.2d...
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Johnson v. Dugger
...The trial court could impose absolutely no limits on the jury's ability to grant mercy for any reason whatsoever. Wyatt v. State, 220 Ga. 867, 142 S.E.2d 810 (1965) (trial court committed reversible error by limiting the jury's discretion to grant mercy according to "the evidence and circum......
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...Judgment affirmed. All the Justices concur. DUCKWORTH, Chief Justice (concurring specially). For the reasons set out in Wyatt v. State, 220 Ga. 867, 142 S.E.2d 810, I concur in the ...