Opinion
18446.
ARGUED JANUARY 12, 1954.
DECIDED FEBRUARY 8, 1954. REHEARING DENIED FEBRUARY 24, 1954.
Murder. Before Judge Smith. Berrien Superior Court. October 17, 1953.
George Thomas, for plaintiff in error.
Ben T. Willoughby, Solicitor-General, Eugene Cook, Attorney-General, Rubye G. Jackson, Wright English, contra.
1. The only evidence relied on here to lay the foundation for testimony that the deceased was a person of violent, turbulent, and dangerous character was the testimony of the defendant's father and brother that the State's witness had said to them that the deceased had his hand in his pocket and that he was pulling something out of his right-hand pocket. The sworn testimony of the State's witness was to the contrary, and the evidence above was, at the most, merely impeaching evidence and is not itself probative evidence which will tend to prove any fact therein contained. Progressive Life Ins. Co. v. Archer, 73 Ga. App. 639 ( 37 S.E.2d 713); Henry v. Hoch, 76 Ga. App. 819, 823 ( 47 S.E.2d 159); Loomis v. State, 78 Ga. App. 336 ( 51 S.E.2d 33). There is no evidence here showing the accused to have been attacked by the deceased, and until this is shown proof of the bad character of the deceased can not be made, and the court did not err in excluding this testimony. See Smithwick v. State, 199 Ga. 292 ( 34 S.E.2d 28); Beam v. State, 208 Ga. 497 (2) ( 67 S.E.2d 573).
2. The testimony of a witness for the accused that he had been threatened and intimidated by the son of the deceased was not in any respect material or relevant to the issues, particularly since it occurred between the time of the crime and the trial, and the court did not err in excluding it.
3. The evidence here, showing that the accused shot the deceased in the manner alleged in the indictment causing his death, was sufficient to authorize the verdict, and for this reason and the reasons stated above none of the general or special grounds is meritorious, and the court did not err in denying the motion for new trial as amended.
Judgment affirmed. All the Justices concur.