Nolen v. State , 124 Ga. App. 593 ( 1971 )

On Motion for Rehearing

Defendant continues to urge that where two theories are presented by the evidence, one of innocence and one of guilt, justice and humanity compels acceptance of the theory of innocence. In most criminal cases the theory of innocence and guilt is present. But in the vast majority of all such cases, it is the jury’s function to determine which theory it will accept. In the case sub judice, in addition to the State’s evidence, the defendant’s statement (unsworn) could have raised grave doubts in the jury’s mind as to his innocence. He stated that he thought he was shot immediately before firing the fatal shot that took his wife’s life. But after it was all over, it was found that he had not been shot. He stated that he fired once as he was turning towards her, and then he had no explanation whatever for three additional shots presumably fired after he had turned toward his wife and was facing her at close proximity. He said he just did not remember. Three of his four shots went into her head and body, and it may be that he was asking the jury to believe that he did not remember firing any of the three shots that went into her head and body and killed her. This may have been the exact truth of the situation, but at the same time, it may not have been the truth, and the jury may have had grave doubts because of this type of statement. The defendant himself was the only eyewitness left in life as to the actual shooting. It is quite likely that the jury looked forward with intense interest to his account of the shooting, so they might determine whether he was justified in shooting and killing his wife. But his failure of memory prevented his giving the jury the benefit of this important phase of the case. A defendant may elect not to make any statement at all, and such failure shall not be commented on by State’s counsel, but if he makes a statement, and fails to refer therein to facts resting peculiarly within his own knowledge, State’s counsel may comment on that fact, and of course, the jury has the right to consider same. Coleman v. State, 15 Ga. App. 338 (2) (83 SE 154). The jury may have believed that defendant’s memory had not failed him, as he contended; that he could not make a satisfactory accounting for the last three shots that he fired; and that he simply pretended he did not remember. The defendant may have been telling the whole truth about the transaction, but the jury was not obliged to believe his statement; they may have credited said statement as self-serving only. A defendant’s unsworn statement is not evidence, and "shall have such force only as the jury may think right to give it.” Code Ann. § 38-415. The jury had the right to accept such statement in whole, or in part, or to reject it in whole, or in part, and in the exercise of their discretion in this respect the jury is unlimited. Jackson v. State, 13 Ga. App. 147 (1) (78 SE 867); Willis v. State, 63 Ga. App. 262 (1) (10 SE2d 763); Largin v. State, 77 Ga. App. 111, 119 (47 SE2d 895); Cox v. State, 172 Ga. 482 (3) (158 SE 17).

Thus, the jury in this case, in considering the evidence and the defendant’s statement, were not bound to reach the conclusion that there were presented two theories, one of innocence, and one of guilt, whereby they were of such equality that the theory of innocence had to be accepted. This court in reviewing the case is likewise unfettered in its judgment.

Motion for rehearing denied.