Whitt v. State , 203 Ga. 538 ( 1948 )

1. The evidence was sufficient to authorize the verdict.

2. Without an appropriate request, the omission of the trial judge to charge the law relating to conflicting evidence and the credibility of witnesses is not cause for new trial.

3. Where, upon the admission of testimony which was objected to on the ground of being remote, the trial judge instructed the jury under what circumstances it should be given consideration or disregarded, it was not error to fail, without request, to charge further upon this subject.

No. 16152. APRIL 14, 1948. The accused was convicted of the murder of his wife and sentenced to electrocution. To the overruling of his amended motion for new trial, exceptions are brought to this court.

The evidence showed that the accused and his wife were living separate. She and her small baby were living with her parents. On the night of the homicide he was visiting his wife and baby. Her father, mother, and brother were in the house but in adjoining rooms at the time of the shooting. No one but the accused, his wife, and baby were in the room when the homicide occurred. She was shot three times with a pistol and died instantly. She was unarmed. The mother immediately went into the room and saw the accused going down the steps.

Another witness testified that at the time of the shooting he was sitting in an automobile near the front of the house; that he saw a man, standing in the door, shoot a woman who was leaning back on the arm of a chair, and when she fell he shot her twice more.

In the defendant's statement he said that his wife's father came in and "acted as if he wanted to start something," and then the brother came in and told him to go, "and when he said that, he leveled the shotgun down on me, and when he did that I seen my life was in danger and I reached my pistol and took a shot and my wife walked across it, and when it snapped it hit her and I guess when I saw her I guess I got excited and shot it some more." 1. The evidence was sufficient to authorize the verdict.

2. The first ground of the amended motion alleges error, in that the judge charged the jury, "You are made by law the exclusive judges of the evidence and of the credibility of the witnesses;" and that this was confusing without further charging that they may consider the witnesses' manner of testifying, their intelligence, means and opportunities of knowing facts, nature of facts to which they testify, probability or improbability of their testimony, interest and want of interest. There is no merit in this ground. Without an appropriate request, the omission of the trial judge to charge the law relating to conflicting evidence and the credibility of witnesses is not cause for a new trial. Lewis v. State, 125 Ga. 48 (1) (53 S.E. 816);Darden v. State, 171 Ga. 160 (6) (155 S.E. 38); Herndon v. State, 45 Ga. App. 360 (6) (164 S.E. 478); Berry v.State, 70 Ga. App. 112 (27 S.E.2d 563).

3. The second ground of the amended motion, not being argued or insisted on, will be treated as abandoned. By the third ground error is asserted, "Because the court erred in failing to charge the principle of law regarding the remoteness of the facts testified to the crime charged." A State's witness testified: "I saw Sam Whitt, the defendant. . . I saw him along just before Christmas last year. I saw he and his wife . . they were fussing. Sam jerked Margret around and said, `Margret, you don't know how close you come to meeting your death." The attorney for the accused stated: "I respectfully submit any conversation had that remote from the alleged crime, which was in March, that is not material to the issue, and I ask the court that it be stricken out." To which the court said: "I think it is going to be a matter the jury has got to pass on, whether they will consider that. Gentlemen, you may consider this testimony in relation to the time this conversation took place and determine in your own mind whether it had any connection with the particular event for which he is on trial now. I will leave that entirely in your hands to determine. If you don't think it had any connection with it, any reasonable relationship, why, you disregard it." In view of the foregoing instructions to the jury given at the time of the admission of the testimony, it was not error, in the absence of a timely written request, to fail to charge the jury further what consideration, if any, should be given this evidence. Such preliminary instructions are not untimely or improper. Bryant v. State, 191 Ga. 686 (12) (13 S.E.2d 820).

Judgment affirmed. All the Justices concur.