1. Where, in the trial of a criminal case, facts are developed from which the jury may draw an unfavorable inference from the defendant's wife's failure to testify, it is error requiring the grant of a new trial for the trial court to refuse to charge a timely written request instructing the jury on the incompetency of the wife to testify for or against her husband in such trial.
2, 3. The other special grounds of the motion for new trial are either without merit or are not likely to recur on another trial.
Under an indictment charging him with the murder of Sawney Williams, Fernandus Waye, alias Stoop Waye, was tried and convicted of voluntary manslaughter and sentenced to serve from one to three years in the penitentiary. His motion for new trial, based on the usual general grounds and 13 special grounds, was overruled, and he has appealed to this court for a review of that judgment.
It appears from the evidence that Williams and Waye lived in two of a group of three houses facing west on Oak Street in Lumpkin, Georgia. Their respective houses were separated from each other by the third house. The Williams house was located south of the middle house, and the Waye house was located on the north. Ronald Gafford, the Marshal of the City of Lumpkin, testified that, on September 27, 1952, the date on which it is alleged that Waye murdered Williams, he saw Williams in Lumpkin at about 11 p. m. at one of the stores and advised him that he had better go home, as he was drinking and was "pretty full at the time." At about 11:05 p. m. or 11:10 p. m., he testified, he heard a shot, and after spending several minutes ascertaining where the shot had been fired from, he arrived at about 11:30 p. m. at the Waye house and found Williams lying dead from a gunshot wound in his temple. From the nature of the wound, it was Gafford's opinion that the shot had been fired from a distance of 10 or 15 feet. Williams was lying on his stomach facing east on the north side of the Waye house, about 10 or 12 feet from the front of that house. Beneath Williams' body was a bloody stick, approximately 4 feet long. Gafford was, in is opinion, the first person to reach the body, as none of the residents of the vicinity seemed to have known that Williams had been shot. He found Waye walking in the street in front of the middle house. Waye was walking southward when Gafford met him, and Waye said that he had been to get Mr. Webb, the sheriff of the county. Gafford also testified that Waye voluntarily related to him: that he had gone to Williams' house to stop an argument between Williams and Williams' wife, and had told him that, if he killed her that night, she would be unable to cook biscuits for him the next morning; that he and Williams had had "a scuffle in the road"; and that later Williams came out from under the Waye house by the chimney and had something in his hand and he shot him. Gafford also testified: that Waye told him that the shotgun introduced in evidence was his; that on the night in question Waye had no blood on him, and he did not complain then of having been hurt or injured by Williams.
Doris Floyd, who lived next door to and south of Williams, testified that on the night Williams met his death Williams and his wife were having an argument in their own home, and after efforts by another neighbor to stop the argument between Williams and his wife, Waye came along and yelled out a vulgar remark to Williams to the effect that, if he killed his wife that night, she would be unable to perform one of her functions as a wife the next morning. She then heard "licks passing" and heard Waye say, "Go on, Sawney, and leave me alone; don't hit me no more." She was unable to say who was striking whom or with what, as it was dark and she could not see. She stated that "Williams and Waye fought for about five minutes, and Waye said to Williams, "You stay here until I get back." About ten minutes after they had "parted," she heard Waye's wife say that Waye had the gun and as she, the witness, ran back to her porch she heard a gun fire.
Vivian Williams, the wife of the deceased, testified that on the night he was killed she and her husband were in their home arguing when Waye, whom she had known all her life and whose voice she recognized, came and knocked on their door, but her husband would not open it; that, when Waye knocked again, her husband opened the door and saw that it was Waye and closed the door again; that Waye then made the vulgar remark referred to in Doris Floyd's testimony. Her husband then ran out of the house, and he and Waye "tied up in a tussle" and Waye told her husband to wait there until he returned, that he was going for his shotgun. Her husband had nothing in his hand when he ran out to tussle with Waye and they did not fight in the road, but were just tussling. After the tussle her husband came back to their house and pulled up a strip or a stick about a foot and one-half or two feet long. She heard the one shot fired which came from Waye's house. Her husband had no gun. He did not own one. He had no knife. He picked up the stick after the fight.
Amos Webb, sheriff of the county, testified that Waye voluntarily related to him: that, on the night of the homicide, he came out the back door of his house and Williams was on the side of the house and had something like a gun in his hand, and he thought that Williams was trying to shoot him; that he, Waye, had his gun and backed Williams all around the house "plumb around in the front and he liked to have fell over the step and be shot over his head." He testified also that Waye never denied killing Williams to him.
Willie J. Mack testified that he was visiting at the house next door to Williams' house on the night of the homicide. He saw Waye go to the Williams house and turn and come back from the house into the road and, following some remark by Waye, he saw Williams run out of his house with a stick and begin hitting Waye; that Waye told Williams to stop hitting him. Williams inquired what it was that Waye had said, and Waye replied that he had meant no harm by his remark, but Williams began to hit Waye again with the stick and Waye "got loose" and ran towards his house, and he saw neither Williams nor Waye again that night.
The defendant made the following statement to the jury: "I started down to Miss Lillie Belle's that night after some matches and she was up on Sawney's [Williams'] porch; she says, 'Sawney, why don't you all quit'; she just quit talking and come on back to the house and they kept on going up there and she says, 'Why don't some of you go up there and keep Sawney from killing that child,' and I says, 'I will walk up there, me and him are kin folks, and see if I can quiet them,' and I knocked on the porch twice and went on back, and coming on back I says, 'Sawney, you should be ashamed of yourself, you kill your wife and she can't bake you no bread in the morning,' and I walked on, and when I knew anything Sawney done come up to my back and bit me and I says, 'Sawney, please quit hitting me,' and he says, 'This ain't all I am going to do to you, I am going to kill you this night,' and I broke loose and my wife heard me and she opened the door and I went in the house and he started in the door and she slammed the door and she says, 'You ain't coming in here.' He was blundering around out there and he had done said he was going to kill me, and I says, 'I can't go to sleep here,' and I could not go to bed and let him burn us out, and we went out there; my wife had the baby in her arms and he had something there and I was beggin' him not to shoot my wife and baby and after that he stumbled and liked to fell and started towards me and I shot; and, when the polices said who done the shooting, I says, 'I have done the shot'; and I went to get Mr. Webb and he asked me this question about what me and Sawney was in to. The next thing he told me when my wife told him to get out of the yard, he says, 'I ain't going no damn where, you had better get out of the way.' That was not what made me shoot, but it was him coming on me with that stick made me shoot; I did not know what that was; I thought my life was just as good as his and my wife's life, and if my wife had not run in and shut the door he would have come and jumped on me in there. Then Mr. Gafford and them took me on up there to jail. I ask you all for mercy because I would not have hurt him for nothing; I was not going to his house to hurt him, did not have that in my mind about going back towards his house."
1. In special ground 13 (numbered 17) error is assigned upon the trial court's refusal to give the following timely written request to charge: "I charge you that in criminal cases husband and wife cannot testify either for or against each other and in this case the wife of the accused is not competent to testify either for or against her husband and the law will not permit her to be sworn as a witness and give any testimony in the case." The defendant insists that lie was entitled to this charge because it appeared both from the evidence and the defendant's statement to the jury that his wife was present at the time and place of the homicide, and the jury might infer from the wife's failure to testify that her testimony would be inimical to her husband in the absence of the requested instruction, which would have prevented the jury's drawing any such inference.
It is well settled that a wife is incompetent to testify against her husband, except in certain cases which are immaterial here. Code 38-1604; Ector v. State, 10 Ga. App. 777 (74 S. E. 295); Allen v. State, 60 Ga. App. 248 (3 S. E. 2d 780); Holley v. Lawrence, 194 Ga. 529 (22 S. E. 2d 154). "Although such is the law, ordinarily there is no occasion that the jury should be instructed upon the subject. But there may be facts developed at the trial of such a nature that a jury might draw an unfavorable inference from the failure of the wife to testify, unless they were instructed as to her competency." Fisher v. United States, 32 Fed. 2d 602; People v. Reno, 324 Ill. 484 (155 N. E. 329); People v. Witte, 350 Ill. 558 (183 N. E. 622).
It appears from the evidence and Waye's statement to the jury that his wife was present at the time and place of the homicide. Among Waye's numerous defenses to the charge of murder was that contained in Code 26-1013, that he killed Williams in defense of his home and family. In his statement to the jury Waye stated that he broke loose from Williams and ran home, and his wife opened the door for him and slammed the door in Williams' face as he was attempting to follow him into the house, and his wife stated to Williams at that time that he could not come into the house. Waye also stated that, at another stage of the altercation between him and Williams, Williams was blundering around outside his house, and that he and his wife, who was holding their baby in her arms, went onto the porch of their house, at which time Williams advanced upon them with an object in his hand which Waye thought to be a gun; that he begged Williams not to shoot his wife and baby, but Williams continued to advance upon him; and that he then fired upon Williams. In the absence of the instruction contained in the timely written request to charge, the jury may well have drawn the unfavorable inference that, if these statements by Waye had been true, he would have put his wife on the stand to corroborate him, and that his failure to do so was the result of his fear that her testimony would be inimical to his defense.
307), where it was held that the trial court's failure to give in charge a similar request was cured by an earlier ruling during the course of the trial that a wife is incompetent to testify for or against her husband; and see Carter v. State, 45 Ga. App. 236 (5) (164 S. E. 210), in which this court held that "the failure of the court to instruct the jury that a husband and wife shall not be competent or compellable to give evidence in any criminal case for or against each other, was not error, in the absence of a timely and appropriate written request."
Under the circumstances which we have indicated above, and in view of the fact that the question of the defendant's guilt or innocence is very close in this case, we think that a new trial is mandatory.
2. Except as indicated above, the trial court's charge was full and fair when considered as a whole; the requests to charge contained in special grounds 9, 10, 11, 12 (numbered 12, 14, 15, and 16) were covered by the charge, and the criticisms of the charge contained in special grounds 3, 4, 5, 6, 7 and 8 (numbered 6, 7, 8, 9, 10, and 11) are not meritorious.
3. The alleged improper remarks and improper argument by counsel for the State are not likely to recur on another trial and no decision is made here with reference to special grounds 1 and 2 (numbered 4 and 5).
Judgment reversed. Gardner, P. J., and Townsend, J., concur.