Opinion
36434.
DECIDED NOVEMBER 21, 1956.
Voluntary manslaughter. Before Judge Davis. Walker Superior Court. August 27, 1956.
Bobby Lee Cook, for plaintiff in error.
Earl B. Self, Solicitor-General, contra.
The court committed reversible error in refusing to allow the knife in question to be put in evidence for the consideration of the jury.
DECIDED NOVEMBER 21, 1956.
Lilly Maxwell, hereinafter called the defendant, was indicted for murder and was convicted of voluntary manslaughter. The defendant's amended motion for new trial was denied, and it is on this judgment that the case is here for review.
The record reveals that the defendant and several others met at the defendant's home and engaged in drinking. This drinking party lasted until the early hours of the morning, around 2:30 o'clock. The husband of the defendant and William Shaver, the deceased, went outside the house and got into Shaver's car. They drove through the pasture and knocked down the defendant's pasture fence, then stopped the car. The defendant went out to the car and attempted to pull her husband from the car. She and the deceased got into an argument, the deceased not wanting the defendant to attempt to get her husband out of the car. Shortly after the investigation was made by the officers the defendant stated to the officers that the deceased pulled her hair while she was endeavoring to get her husband from the car and she went into the house and procured a shotgun and came back and shot the deceased. In her statement she said that when she returned to the proximity of the car with the shotgun the deceased started toward her with a knife described by an officer as "a white bonehandled knife, the main blade being approximately three inches long, with a sharp blade." The defendant in her statement contended that the reason she shot the deceased was because he was coming toward her with something in his hand. She stated that when the defendant came toward her, "He had something in his hand, I don't know what it was, whether it was a gun or knife or what it was, but it looked white when he kept coming on me." There is also controversy in the record as to how far away the knife was found by the officers, relative to the place where the deceased was shot. Also, the evidence is to the effect that the knife had been moved by someone.
The only issue before this court is whether or not the court committed reversible error in refusing to allow the knife to be introduced for the consideration of the jury. It is our opinion that there is no doubt that the knife in controversy was a deadly weapon and perhaps the admissibility of the knife was doubtful. The Supreme Court said in Mitchell v. State, 71 Ga. 128, 156: "In view of the well-settled rule that penal laws are to be strictly construed in favor of the life or liberty of the accused, and that as against the State, in furtherance of the same benignant and merciful purpose, they are to be so interpreted as to have all the temperament of justice and equity of which they are fairly susceptible, not incompatible with the safety of the community. We conclude that the testimony of this witness should have been received. To say the very least, his competency was no more than doubtful. And in all such cases the well established practice is to admit the evidence and allow the jury to pass upon the circumstances affecting its competency in determining its credibility and weight." See also Jasper County v. Butts County, 147 Ga. 672, 673 ( 95 S.E. 254), as follows: "Where the admissibility of evidence is doubtful, the rule in this State is to admit it for the consideration of the jury under proper instructions from the court. Central of Georgia Ry. Co. v. Bernstein, 113 Ga. 175, 177 ( 38 S.E. 394). This is true even in criminal cases."
In our opinion the cases called to our attention by the solicitor-general do not sustain the contention of the State. Those cases are: Nix v. State, 120 Ga. 162 (2) ( 47 S.E. 516); Chapman v. State, 155 Ga. 393 ( 117 S.E. 321); Nolan v. State, 14 Ga. App. 824 (2) ( 82 S.E. 377); Theis v. State, 45 Ga. App. 364 (1) ( 164 S.E. 456), and Hart v. State, 88 Ga. App. 334 (4) ( 76 S.E.2d 561). The State contends that the ruling as to the admissibility of the knife was harmless to the defendant, since the witness officer held the knife in plain view of the jury, and since the jury could see it, the jury thereby getting the correct idea of the knife the same as if it had been introduced. We cannot see as a matter of law that the State's contention as to this issue is correct.
The court committed reversible error in refusing to allow the knife in evidence.
Judgment reversed. Townsend and Carlisle, JJ., concur.