Lewis, J.
The accused was tried and convicted in Franklin superior court, on an indictment charging him with the offense of murder. He was found guilty, with a recommendation to life imprisonment; whereupon he moved for a new trial, and excepts to the judgment of the court overruling the same.
1. One ground in the motion for a new trial is that the court erred, after the accused had made his regular statement to the jury in his defense on the trial and closed, in refusing to let him go back upon the stand the second time, to rebut the testimony of a witness who swore, after the State had closed and after defendant’s statement, that defendant came to the house of witness after the killing, and said he had killed “Jule-somebody for twenty cents;” that she was not related to Jule Thompson (the deceased). The question as to whether or not one on trial for a criminal offense, as a matter of right, can make a second statement is no longer an open one before this court. It was decided that the accused has no such right, in the case of Vaughn v. State, 88 Ga. 732. In Boston v. State, 94 Ga. 590, it was decided: “It is not matter of right for [374]*374the accused to make a second statement to the court and jury because the State has introduced additional-evidence which strengthens the case against him.” See also Sharp v. State, 111 Ga. 176.
2. Another ground in the motion is that the court erred in this: “ While the solicitor-general was making Ms argument M conclusion to the jury he called their attention to the fact that the defendant’s. own daughter, Marie'Knox, a little girl, was present at-the hoimcide, and that inasmuch as the defendant had failed to Mtroduce her as a witness they should take that as a powerful circumstance against Mm, and should convict. Whereupon defendant’s counsel duly objected to such argument as bemg unauthorized and. improper, and asked the court to disallow the same, and the court allowed said argument to stand, and allowed the solicitor-general to continue Ms argument at length on tMs hne.” We thmk that, under the facts developed by tMs record, the comment on the failure of the accused to brmg Ms little girl into court as a witness to sustain Ms defense was not a legitimate subject-matter of argument before the jury, and that the court erred m not promptly correcting the solicitor-general when objection was made to such argument by counsel for the accused. The evidence tended to show that tMs was a little girl. There was not a particle of evidence to show that she was at all competent as a witness. Mere failure to call and examine such a person, who was present at the commission of an alleged offense, is not sufficient to raise the presumption agarnst the accused that tMs person, if introduced, would have testified unfavorably to him. It should further appear that-such a person was a competent witness.
3. Another ground in the motion sets forth the followMg written request wMch the court gave M charge to the jury : “ In reference to some of the points alluded to m the argument, I charge you that there is no evidence before you that the girl alluded to m the argument is a competent witness; and if a competent witness, either party has a right to mtroduce her as a witness, and the fact that the defendant did not introduce her testimony should have no weight with the jury M determinMg the gMlt or Mnocence of the defendant.” ComplaMt is made that the court added to that request the following: “ And though the general rule is, where a party has evidence m Ms power by wMch he may repel or rebut a charge or claim against Mm, and fails to do so, and where in that [375]*375which is of a weaker and inferior nature, a presumption arises that the charge or claim is well founded, this presumption may be rebutted even by circumstances coming under your knowledge and observation in the course of the trial.” We do not think the erroneous ruling in the present case was by any means cured by giving this request of defendant’s counsel afterwards to the jury; and especially not by adding thereto the charge last quoted, which we fear was calculated to confuse the jury upon the subject.
There are other grounds in the motion for a new trial, but they are not of sufficient merit to require consideration. The judgment of the court refusing a new trial is reversed, because of the error set forth in the second headnote.
Judgment reversed.
All the Justices concurring.
Free access — add to your briefcase to read the full text and ask questions with AI