Lewis "Weaver was indicted and tried for mur-
der. On the trial a witness testified that he was present when Dan Goolsby, the victim, approached Weaver and demanded his money or liquor which he said he had purchased, calling Weaver a damn son of a bitch; and that he saw Weaver strike and knock Goolsby down with a stick very similar to, if not identical with, the one exhibited and introduced in evidence. The expert who made an autopsy on the body some ten days later testified that this stick, if used with great force, could have produced the fractures he found on the back of Goolsby’s head, and could have caused his death. Witnesses testified that the stick exhibited looked like the one they saw Weaver carrying a few hours before he struck Goolsby, and that it was found in a certain lumber yard where, after being questioned, Weaver said he left it. Other direct and circumstantial evidence tended to connect him with the commission of the crime. The jury returned a verdict of guilty with a recommendation to mercy. His motion for a new trial was overruled, and he excepted.
Special ground 1 of the motion for new trial takes the position that the court erred in not charging without request “the law of voluntary manslaughter, which movant insists was and is applicable to this caseand the movant attaches to this ground certain portions of the evidence which he insists support him in the position taken. The complaint there set forth is too vague and indefinite to raise any question for determination by this court. “A ground in a motion for new trial, in a conviction for murder, that '"the court erred in not giving in charge to the jury the law
When one examines the brief'of evidence in this case, he is in position to appreciate the difficulty under which the movant’s counsel would have labored in endeavoring to state what particular principle of the law of voluntary manslaughter was involved. There was no evidence of any mutual combat. The testimony of the only witness who saw the assault was to the effect that Goolsby, who was so drunk he could hardly stand up, went unarmed towards his assailant, using opprobrious words towards him, whereupon the accused struck him with the piece of wood. Compare the Code, § 26-1007; Duncan v. State, 141 Ga. 4 (80 S. E. 317); Brown v. State, 175 Ga. 329, 337 (165 S. E. 252). In his statement, the accused denied having been present at the time the offense was committed. But, if because of what the brief of evidence contains, and what it does not contain, it is made, impossible for counsel for the accused to do more than he has done in framing this ground of the motion, this does not relieve us from the duty of applying the well-known rule of practice referred to next above.
The second ground insists that the court erred in not charging without request “the law of alibi, which movant insists was and is applicable to this case;” and there follows as a part of this ground certain extracts from the brief of evidence, which the movant insists required a charge on this principle of law.
If it be assumed that this ground of the motion is immune to the fatal ailment which struck down the first ground, then it seems that there are at least two answers to the movant’s position. Mathis v. State, 153 Ga. 105 (111 S. E. 567), and Jackson v. State, 172 Ga. 575 (158 S. E. 289), were cases in which this court said that the evidence, construed most favorably for.the movant, did not reasonably exclude the possibility of the presence of the defendant at the scene of the homicide; and therefore it was not error to fail to charge without request the law of alibi, since “alibi as a defense
The second answer is, that the judge in his charge gave the defendant the benefit of the contention made by him in his statement, that the accused was not present at the time the injury to the deceased occurred, if he received any injury. This is apparent when that part of the charge is considered wherein the judge instructed the jury as follows: “Now the defendant, gentlemen, denies that he killed the person named in this indictment. He denies that he struck the person named in the indictment. He contends that, while the deceased was present at his home on the evening before he was found the next day, he left him in the presence of some other party or parties, and that he, the defendant, went to his home and went to bed — or the house where he resided and went to bed — and left him outside with some other people; that he did hot strike him, had no difficulty with him, was not implicated in any way in any injury that he may have received, and was not present at the time it occurred if he received any injury. If you should find his contentions to be the truth of the case, then he would not be guilty under the law, and it would be your duty to acquit him.”
Ground 3 of the motion complains that the court, over objection by the movant, admitted in evidence photographs of the
Ground 4 complains of the admission in evidence, over objection by the accused, of a certain stick which had been referred to as a “tie-stick.” The evidence was sufficient to authorize the jury to find that this was the stick with which the deceased was struck and which caused his death. There was no error in admitting it in evidence.
Ground 5 recites that, “After completion of evidence, the argument of counsel, and charge of the court, and upon the retiring of the jury to consider said case, the prosecuting attorneys, without having tendered the same in evidence or given this movant or his counsel an opportunity to object to the admission thereof, placed in the hands of the jury the following documents, to wit” — these documents being an affidavit of Susie Johnson and an autopsy report on the body of the deceased. To this ground of the motion the trial judge added the following note: “The affidavit of the witness, Susie Johnson, was exhibited to her while she was on the stand and being examined by the solicitor-general, who stated he had been entrapped by the witness, .and, in the presence of the jury and counsel for the defendant, examined her with reference thereto, and the affidavit was placed on the table of the court reporter along with other documents, and was referred to in the argument of counsel; and, while not formally tendered in evidence, was handed to the jury when they retired along with other documents which had been formally introduced in evidence. The original report of the witness, Dr. Herman D. Jones, was produced by him while he was under cross-examination by counsel for the defendant, and at the request of counsel for the defendant, and he
It will be noted that this ground contains no statement that neither the attorneys nor the accused knew at the time or before the verdict was received that these papers had been placed in the hands of the jury before they retired. The ground does not even negative the idea that the papers were sent out with the jury with the consent of the accused and his attorneys. In Maynard v. Fellows, 43 N. H. 255, an exception was taken because certain papers were sent to the jury room.. After stating that it could not have operated prejudicially to the losing party, Bell, Chief Justice, has this to say: “But there is a further answer to this point of the case. It is founded on a mistaken view of the duties of counsel. It is not enough to say that a paper was improperly sent to the jury by the adverse party without his knowledge. It is his duty to ascertain what papers are sent to the jury, before they leave the '‘ourt; and no motion for a new trial should be allowed, merely because this duty had been neglected. It should appear that the counsel used due care, that none but proper papers were passed to the jury; and that the paper in question was sent to the jury by some mistake, or through some trick or artifice of the opposite counsel. Here it is only said that the paper was handed to the jury without the knowledge of the trustees’ counsel.” Judge Seymour D. Thompson, in 2 Thompson on Trials (2d ed.), § 2591, incorporates what has been quoted from this Hew Hampshire decision into his text, thus giving it the stamp of his approval. This statement is again quoted with approval in McCormick v. Badham, 204 Ala. 2 (85 So. 401). State v. Nichols, 29 Minn. 357 (13 N. W. 153), was a case where, as the jury were about to retire, the court delivered to them certain papers, part of the record certified from the justice before whom the proceedings were instituted. No objection was made. The court held that, this having occurred in court and upon the trial, it would be presumed that the defendant’s attorney knew the fact, in the absence of a distinct showing that he did not know it, and, by not having objected or otherwise called
We are content to rest our ruling upon the foregoing authorities, and hold that, since it does not appear but that the accused and his counsel knew before the jury returned their verdict that the papers had been delivered to the jury, the attorneys, in the absence of a showing to the contrary, are presumed to have known that the papers were so delivered to the jury.
The general grounds of the motion have been carefully considered. The evidence was sufficient to authorize the verdict.
Judgment affirmed.