Rutland v. State

Broyles, C. J.

1. “ It is well settled by numerous rulings of the Supreme Court and of this court that the law of voluntary manslaughter may properly be given in charge to the jury on the trial of one indicted for murder, where, from the evidence or from the defendant’s statement to the jury, there is anything deducible which would lend to show that he was guilty of manslaughter, voluntary or involuntary, or which would be sufficient to raise a doubt as to whether the homicide was murder or manslaughter.” May v. State, 24 Ga. App. 382 (100 S. E. 799), and citation; Elders v. State, 24 Ga. App. 279 (100 S. E. 781), and citations. Under this ruling the court did not err in instructing the jury upon the subjects of mutual combat and of voluntary manslaughter; nor were the charges upon these subjects erroneous for any reason assigned.

(a) The definition of “mutual combat,” in the charge of the court, and the charge upon that subject, were sufficiently full, in the absence;of timely and appropriate requests for more elaborate ' instructions thereon.

2. The excerpt from the charge upon the subject of provocation by words, threats, menaces or contemptuous gestures, as complained of in the motion for a new trial, when considered in the light of the entire charge and the facts of the case, was not erroneous for any reason assigned.

3. Complaint is made of the following charge: “Good character of one on trial for crime, if satisfactorily proved, may be considered by the jury along with the other evidence in the case, and may of itself, in a case where guilt is not plainly established, be sufficient to generate in the minds of the jury such a reasonable doubt of guilt as would authorize his acquittal.” This charge was substantially correct and was not error' for any reason assigned. See, in this connection, Hill v. State, 18 Ga. App. 259 (1 b) (90 S. E. 351).

4. The court did not err in admitting in evidence, over the objections of the defendant, an affidavit made by a witness for the State before the trial, for the sole purpose of impeaching the witness, the affidavit containing statements material to the case and to the witness’s testimony upon the trial and contradictory to such testimony.

5. Exception is taken to the following excerpt from the charge of the court: “ The State has, as it is its privilege to do, undertaken to impeach one of the defendant’s witnesses by proving certain statements alleged to have been made by her before the trial, conflicting with her testimony delivered upon the stand, and for that purpose has introduced for your consideration an affidavit admittedly signed by her on the morning following the death of the deceased. I charge you the purpose for which such affidavit was admitted for your consideration was and could be only that of impeaching the witness in question and discrediting the testimony delivered by her upon the trial. You will consider it only to that extent and for that purpose, that is, that of determining whether or not you will believe the testimony delivered in your hearing by the witness in question. The affidavit referred to is not evidence of the defendant’s guilt or of the allegations contained therein, and you are charged to refer to it and consider it only in order to determine the credibility of the witness who signed it. You are not to consider the affidavit or any statements therein contained in determining whether or not the defendant is guilty of the crime charged. I charge you, without intimating any opinion as to what has or has not been established by the evidence, the following code section relative to the subject of impeachment: A witness may be impeached by contradictory statements previously made by him as to matters relevant to his testimony and to the case. Before contradictory statements can be proved against him (unless they are written statements made under oath in connection with some judicial proceedings) his mind should be called with as much certainty as possible to the time, place, person, and circumstances attending the former statement, and, if in writing, should be shown to him, or read in his hearing, if in existence. As explanatory of the rule laid down in that code section, I charge you when the credibility of a witness is attacked, as by an effort to impeach him in any of the methods pointed out by law, the jury then become the triors of the credibility of the witness sought to be impeached, and of the witness or witnesses by whose testimony the attack is made; they are to weigh the opposing testimony, and at last say whether they will discredit the testimony of the witness sought to be impeached, and consequently give credit to that introduced by way of impeachment, or whether they will discredit the testimony introduced for the purpose of impeachment, and credit that of the witness attacked. In a word, it is the exclusive province of the jury, under all the attendant circumstances and conditions, to determine whether a witness has or has not been impeached. A witness is never impeached in contemplation of the law until there is a mental conviction produced upon the mind of the jury by proof that he is unworthy of credit. You thus see that it is a matter solely for the determination of the jury.” The following portion of this excerpt from the charge, to wit, “ They [the jury] are to weigh the opposing testimony, and at last say whether they will discredit the testimony of the witness sought to be impeached, and consequently give credit to that introduced by way of impeachment, or whether they will discredit the testimony introduced for the purpose of impeachment, and credit that of the witness attacked,” is excepted to on the ground that it “had the effect to leave it to the jury to adopt and credit as direct evidence in the case the affidavit of this witness previously made or the testimony delivered on the trial, leaving the jury to compare the testimony on the trial with the affidavit previously made, and adopt either.” When this portion of the excerpt is considered in the light of the entire excerpt, there- is no merit in the exception. Exceptions were taken also to other portions of the excerpt quoted above, but they are without substantial merit.

6. None of the other excerpts from the charge of the court, when considered in the light of the charge as a whole and the facts of the case, shows reversible error.

7. The alleged newly discovered evidence is-largely cumulative and impeaching in its character and was met by a counter-showing on the part of the State. Under these circumstances we cannot say that the court abused its discretion in overruling those grounds of the motion for a new trial which were based upon the alleged newly discovered evidence.

8. The verdict was authorized by the evidence, and the court did not err in overruling the motion for-a new trial.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.