Wynes v. State
| Citation | 185 S.E. 711,182 Ga. 434 |
| Decision Date | 16 April 1936 |
| Docket Number | 11257. |
| Parties | WYNES v. STATE. |
| Court | Supreme Court of Georgia |
Rehearing Denied May 16, 1936.
Syllabus by Editorial Staff.
On review of admissibility of evidence, attention of Supreme Court must be called to specific ground of objection at time evidence was offered, and failure to do so may be considered as waiver.
Additional objections to admissibility of evidence urged on motion for new trial are insufficient to raise questions thereon in Supreme Court.
In homicide prosecution, evidence as to what physician who had visited and treated deceased had said to witness in reference to mental condition of deceased and instructions which physician had given to witness for care of deceased held inadmissible on cross-examination as hearsay and not for purpose of impeaching witness and as opinion of another.
Witness will not be permitted to prove opinions of others on any question.
In homicide prosecution, evidence that witness who had been impeached by showing of prior inconsistent statements on first day of coroner's inquest had given consistent testimony on second day of inquest and explained contrary testimony on ground that she had been threatened by one of defendants and was afraid to tell the truth at that time held admissible.
Where impeachment of witness is sought by proof of contradictory statements made by him under oath, all testimony given by witness on former hearing is competent on point in question in order to show that on the whole it was not inconsistent with testimony of witness given at trial in progress.
Admission or exclusion of testimony as to experiments must rest largely in discretion of trial judge, and exercise of such discretion will not be controlled unless abused.
Weight of testimony as to experiments is for jury and varies according to circumstances of similarity that jury may find to exist between experiments as made and actual occurrence under investigation.
In homicide prosecution, admission of testimony as to experiments before coroner's jury by which it was shown that piece of cardboard from which gun was held at distance of two feet when discharged had approximately same size hole and powder burns as body of deceased when no cloth was placed in front of cardboard in experiments held not abuse of discretion as against contention that experiments were not carried out under same conditions under which wound was produced in body of deceased.
In homicide prosecution, omission to charge on defense of alibi held not error, in absence of timely written request therefor, where defense was made only by defendant's statement.
In homicide prosecution, error, if any, in failure to charge on law of conspiracy, held harmless, in absence of timely written request therefor, where court did charge jury that each of two defendants, although tried together, was entitled to have his case decided separately and apart from the other.
Error from Superior Court, Heard County; L. B. Wyatt, Judge.
Clarence Wynes was convicted of murder, and he brings error.
Affirmed.
Failure to instruct on alibi is not error, in the absence of a written request, where such defense is made only in defendant's statement.
Frank Gearreld, of Franklin, and Willis Smith and Smith & Millican all of Carrollton, for plaintiff in error.
Luther M. Wyatt, of La Grange, Wm. Y. Atkinson, Sol. Gen., of Newnan, M. J. Yeomans, Atty. Gen., B. D. Murphy, Asst. Atty. Gen., and E. J. Clower, of Atlanta, for the State.
Syllabus OPINION.
Clarence Wynes and Mrs. Mitt Wynes were jointly indicted and tried for the offense of murder, and were convicted. Motions for new trial were overruled, and each of them excepted.
1. In the several grounds of the motion for new trial it appears that the defendant objected to the admission of evidence on certain grounds at the time it was introduced. In the motion for new trial additional reasons are given as to why the evidence was inadmissible. The attention of the court must be called to the specific ground of objection at the time the evidence is offered, and the failure to do so may be considered a waiver. Andrews v. State, 118 Ga. 1, 43 S.E. 852, and cit. Additional objections urged on motion for new trial are not sufficient to raise questions thereon in this court. Georgia Railroad v. Daniel, 135 Ga. 108 (2), 68 S.E. 1024.
2. Ground 1 of the amendment to the motion for new trial complains that the court erred in not allowing a witness for the state, on cross-examination by the defendant, to testify what a doctor who had visited and treated the deceased had said in reference to the mental condition of the deceased and as to what instructions the doctor had given to the witness for the care of deceased. This testimony was purely hearsay, and was not for the purpose of impeaching any witness; and, furthermore, "A witness will not be permitted to prove the opinions of others on any question." ...
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