Lampkin v. State , 145 Ga. 40 ( 1916 )

Beck, J.

(After stating the foregoing facts.)

1. When the witness Seabell Kimbrell was on the stand she was permitted, over objection, to testify that the accused shot the mother of the witness just before shooting the woman for whose murder he was on trial; and the admission of this evidence over objection is complained of in the motion for a new trial. There is no merit in the exception. The shooting of the mother of the witness and the woman for whose murder the defendant was being tried took place so near together that the shooting of the first was a part of the res gestae of the transaction which forms the basis of the indictment. And moreover, it was admissible as showing the animus of the defendant and express malice on his part; and admissible in view of the fact that the defendant claimed that the shooting of his wife was unintentional.

2. The presiding judge propounded the following questions to the witness Seabell Kimbrell, introduced by the State, whose testimony showed a clear case of unprovoked murder, eliciting the answers shown: Q. “What time was it that the killing occurred ?” A. “I don’t know, sir.” Q. “Had you been to sleep that night?” A. “Yes, sir.” Q. “Well, how do you know whether he had been in the room or not?” A. “You mean when the shooting taken place?” Q. “Before the shooting took place; you mean that you had not been asleep at all before the shooting occurred?” A. “No, sir.” Q. “You had not been asleep that night?” A. “No, sir.” Q. “You had not been asleep at all?” A. “No, sir.” Q. “So you had been awake all night long?” A. “I had not been to sleep that night before I went to bed.” Q. “How long had you been in bed when this man came to the window?” A. “I don’t know, sir.” Q. “Did he come in the window before, midnight or after midnight?” A. “After midnight.” Q. “Well, you had not been to sleep?” A. “Yes, sir.” Q. “If you had been to sleep you didn’t know whether this man had been to the room or not?” A. “No, sir.” The movant complains that the examination of the witness by the court, eliciting the answers just set forth, was prejudicial to his cause. Quite the contrary, it seems to us. If there is anything at all in the examination from which the jury might draw an inference as to the mental attitude of the court to the testimony, that inference would not be prejudicial to the accused. There is nothing in the questions asked by the court lending weight to the testimony of the witness.

3. The court did not err in charging the jury as follows: “A reasonable doubt I charge you to be a doubt for which you can give a. reason. You have no right to create for yourselves a vague or fanciful doubt in order to acquit the defendant, but the doubt must be one reasonably and fairly entertained on the part of the jury, one that grows out of the testimony or the lack of testimony and leaves the minds of the jury wavering and uncertain, not satisfied.” Charges substantially the same as this have been approved by this court.

4. Exception is taken to the following charge of the court: “If you find from the evidence that the defendant committed the homicide alleged, and if, from the evidence establishing the homicide, you find no facts of extenuation or mitigation, you would have the right to imply a felonious killing.” This charge is not error. Mann v. State, 124 Ga. 760 (53 S. E. 334, 4 L. R. A. (N. S.) 934).

5. The defendant had no ground for complaining of the instruction referred to in headnote 5.

6. The principle stated in the 6th headnote has been several times announced by this court.

The grounds of the-motion not specifically mentioned are without merit, and there was sufficient evidence to authorize the verdict.

Judgment affirmed.

All the Justices concur.