Williams v. State , 123 Ga. 138 ( 1905 )

Lumpkin, J.

(After stating the facts.) 1. Counsel for defendant objected to the introduction of any evidence against the accused until the corpus delicti had first been proved by the State. There was no error in overruling this objection. The order in which evidence is allowed to be introduced must rest, to a considerable extent, in the sound discretion of the presiding judge. Sometimes the corpus delicti may- be proved separately, and evidence tending to connect the accused with the offense produced afterwards. Iu other cases proof of the corpus delicti and of the connection of the defendant with it is so interwoven as to be practically inseparable in the introduction of evidence. Thus if a defendant were charged with murder by shooting another, it would be difficult to prove the homicide as an independent fact before showing that the defendant was the perpetrator. If the corpus delicti and the guilt of the defendant are both proved as the law requires, it will not furnish him any ground for' complaint that the evidence did not separate the case into two distinct parts and refer to each separately.

2. A letter was offered in evidence which had been written by the defendant from, Charleston, a day or two after the woman’s death, to a witness sworn in his behalf who resided at Augusta, telling of his arrival in Charleston and his compliance with a request previously made by the witness, explaining why he had gone to Charleston on “the former” excursion, and requesting the witness to address a reply to him at that point. This was properly rejected by the court. It amounted to offering declarations of the defendant in his own favor, forming no part of the res gestas, or, as it is sometimes expressed, self-serving declarations. Dixon v. State, 116 Ga. 186; Boston v. State, 94 Ga. 590.

3, 4. Complaint is made that the court charged that the defendant set up the plea of alibi, besides -that of not guilty, and defined alibi to mean absence from the scene of the alleged crime at the time of its commission, thus making it impossible for him to have.perpetrated it. The court gave a correct definition of the defense of alibi, and correctly applied it. Penal Code, § 992. The contention made by counsel for defendant is that the alibi sought to be shown by him was that he was at a different place at the time .when the State endeavored to prove that he purchased poison. This would not be a defense of alibi, but merely evidence conflicting with some of that introduced by the State, and would be for the consideration of the jury under the plea of not guilty. . The court did not err, therefore, in failing to charge upon this contention of the defendant as if it were a plea of alibi.

5. Objection was made to allowing a witness to testify that he saw the bread, some of which he was told the deceased had eaten. As appears in the motion, for new trial, however, the ground of objection was not stated. The court and counsel had a colloquy, which resulted in the evidence remaining in, the court saying that counsel could show its impropriety on' cross-examination. This court can not pass on the alleged error without having before it the ground of objection made to the evidence at the time when it was offered. As to not ruling it out later; see Stone v. State, 118 Ga. 705 (9); Cawthon v. State, 119 Ga. 396.

6. It is contended that the court erred in refusing a request to give the following charge: “ I charge you that the failure to find arsenic in the stomach of the deceased could create a reasonable doubt in your mind as to the guilt of the accused; and if that doubt is with you, you can not convict the accused.” This request was properly refused. It singled out a particular piece of evidence and sought to have the jury instructed, in effect, that it could be sufficient to create a reasonable doubt in their minds. The charge fairly instructed the jury on the subject of reasonable doubt. McDuffie v. State, 90 Ga. 786; Delk v. State, 92 Ga. 453.

7. The rule that, in order to convict upon circumstantial evidence, the proof must exclude every reasonable hypothesis except that of guilt, was given in charge by the court. Defendant’s counsel made a request to charge, which was a substantial repetition of the charge given, with the added clause, “ and this rule should never be relaxed in a case involving life, or imprisonment for life.” This was a purely argumentative addition to the rule of law, and was rightly refused by the court. The use of language of this character by a Justice of the Supreme Court in discussing the facts of a particular case (Martin v. State, 38 Ga. 295), does not necessarily render it proper for use by a judge of a trial court in charging the jury. Atlanta & West Point R. Co. v. Hudson, ante, 108.

8. Error was alleged because the court declined to give the following request to charge: “ I charge you that you aye to consider the evidence of expert witnesses as you do that which falls from the lips of other witnesses. The law permits you to believe it in preference to the other evidence, if there is a conflict between the two.” The court left the jury to determine the weight of the evidence, and properly refused this request.- In it the credibility of the witnesses themselves was entirely left out of view, as well as their opportunity for knowing the facts to which they testified, and the nature of such facts. That a witness may be an expert does not furnish ground for disbelieving him, but his evidence is to be weighed by the jury; and the rules applicable to determining the weight to be given other evidence are also applicable as to experts. Merritt v. State, 107 Ga. 676 (4); Ryder v. State, 100 Ga. 529 (6).

9. The verdict was sustained by the evidence, and there was no error requiring a new trial.

Judgment affirmed.

All the. Justices concur, except Simmons, G. J., absent.