Opinion
16981.
FEBRUARY 15, 1950.
Murder. Before Judge Pratt. Jackson Superior Court. December 3, 1949.
George W. Westmoreland, for plaintiff in error.
Eugene Cook, Attorney-General, Hope D. Stark, Solicitor-General, and J. R. Parham, Assistant Attorney-General, contra.
1. Where evidence is admissible to show motive and to connect the accused with the crime charged, the mere fact that it may tend incidentally to put the character of the accused in issue would not render it inadmissible. Wilson v. State, 150 Ga. 285 (2) ( 103 S.E. 682); Cooper v. State, 182 Ga. 42, 51 ( 184 S.E. 716, 104 A.L.R. 1309); Williams v. State, 152 Ga. 498 ( 110 S.E. 286); Frank v. State, 141 Ga. 243 ( 80 S.E. 1016); Hill v. State, 148 Ga. 521 ( 97 S.E. 442). But it is error to allow, over objection of the defendant, prejudicial and irrelevant matter to go before the jury in a trial which tends to place his character and conduct before the jury, where the nature of the case does not involve such character, and the same does not render necessary and proper the investigation thereof. Code, § 38-202; Fitzgerald v. State, 184 Ga. 19 ( 190 S.E. 602); Moose v. State, 145 Ga. 361 ( 89 S.E. 335).
2. It is essential that the jury be not improperly influenced or prejudiced against persons on trial; and if the jury act from passion or prejudice against the accused in rendering their verdict against him, a new trial will be granted. Flanagan v. State, 106 Ga. 109 ( 32 S.E. 80); Fitzgerald v. State, supra. When improper evidence which is harmful to the defendant is allowed over objection, it cannot be said that such evidence did not prejudice the defendant. Owens v. State, 118 Ga. 753 ( 45 S.E. 598); Johnson v. State, 128 Ga. 71 ( 57 S.E. 84); Fitzgerald v. State, supra.
3. The testimony submitted by the State, over objection, that the accused was operating a disorderly house was irrelevant, immaterial, and prejudicial, since it placed her character in issue where the nature of the case did not involve character; and the testimony objected to above could not show motive, plan, or scheme to commit the crime for which she was indicted.
4. It was not error to admit in evidence, over the objection that it was irrelevant, immaterial, and prejudicial, a photograph of the body of the deceased child taken after its death and 11 days after its admission to the hospital. There was testimony that the child's emaciated body at the time it was admitted to the hospital, was the same as pictured in the photograph. Johnson v. State, 158 Ga. 192 (2) ( 123 S.E. 120); Bryan v. State, 206 Ga. 73 (2) ( 55 S.E.2d 574); Tatum v. State, 206 Ga. 171 ( 56 S.E.2d 518), and citations.
5. For the reason stated in headnote 3 above, the trial court erred in failing to grant the motion for new trial as amended. Since a new trial will be ordered, and the evidence at that time may not be the same as here, no ruling is made on the sufficiency of the evidence.
Judgment reversed. All the Justices concur.
No. 16981. FEBRUARY 15, 1950.
STATEMENT OF FACTS BY DUCKWORTH, CHIEF JUSTICE.
Myrtle Gee Anderson, mother of a two-year-old child, was indicted for murder of her child, in that it died of malnutrition which was the result of criminal negligence on the part of the mother.
After a jury trial had resulted in a verdict of guilty with a recommendation for mercy, a motion for new trial was made on the general grounds, which motion was later amended to include two special grounds: (1) that the court erred in allowing the State to place in evidence, over objection of counsel, the character of the accused; and (2) that the court erred in allowing the State to place in evidence, over objection, a photograph of the body of the deceased child taken after its death and 11 days after its admission to the hospital to be treated for malnutrition.
The evidence in special ground 1 was that the accused remained out late at night with various men, did not do any work of any kind, entertained various men at her house, operated a disorderly house, and returned home many times late at night, after being out with various men, in various stages of undress; all of which the State alleges was necessary to show a motive that that the accused cared nothing for her child, and wilfully and criminally neglected it, which resulted in its death from malnutrition.
The motion for new trial as amended was overruled, and the exceptions here are to that judgment.