MoCoy v. State
MoCoy v. State
Opinion of the Court
J. C. McCoy was found guilty, without a recommendation of mercy, of the murder of his wife by shooting her with a pistol. His motion for new trial, which was denied by the judge, in addition to the general grounds, contains six special grounds.
The evidence shows that the defendant, who lived in the home of his father-in-law, shot and killed his wife on the evening of December 14, 1939. During the evening meal the defendant’s wife
The first special ground complains that the judge should have charged without request the law of voluntary manslaughter as in the case of “mutual combat,’’ it being contended that the defendant at the time of the killing was engaged in combat with his father-in-law. Neither the evidence nor any portion of it taken in connection with the defendant’s statement authorized a charge on voluntary manslaughter.
In the second special ground the defendant complains of the following excerpt from the charge: “Gentlemen, if upon considering this ease, giving careful consideration to all the evidence in the case, and giving the defendant’s statement such weight and credit as you think it is entitled to receive, you believe that this defendant, in the County of Fulton and State of Georgia, at any time prior to the return of this bill of indictment, did unlawfully and with malice aforethought kill and murder one Katherine McCoy by then and there shooting her with a pistol as charged in this indictment, and if you believe that beyond a reasonable doubt, it
The third special ground complains of the failure of the court to give a requested charge on the subject of insanity. It is conceded by counsel that the principles contained in the request were substantially covered in the charge given by the court. Where the principles requested are covered in the general charge to the jury, the judgment will not be reversed for refusal of the request. Holton v. State, 137 Ga. 86 (5) (72 S. E. 941); Davis v. State, 153 Ga. 669 (13) (113 S. E. 11).
Grounds 4 and 5 assign error on a recharge given in response to an inquiry by the jury , on the matter of recommendation of mercy. The court instructed the jury that the matter of recommendation rests solely within the discretion, the wish or desire of the jury. In this there was no error. Wheat v. State, 187 Ga. 480 (3) (1 S. E. 2d, 1); Taylor v. State, supra.
Ground 6 is upon newly discovered evidence. It does not appear that this evidence would likely produce a different verdict. Applications for new trial on the ground of newly discovered evidence are addressed to the sound discretion of the trial judge, and a refusal to grant a new trial on that ground will not be reversed unless his discretion is abused. Miller v. State, 119 Ga. 561 (46 S. E. 838) ; Bradford v. Brand, 132 Ga. 642 (64 S. E. 688). The judge did not abuse his discretion in overruling this ground.
Judgment affirmed.
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- MoCOY v. State
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