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HEAD, Justice.
Arson. Before Judge Carpenter. Wilkinson Superior Court. March 2, 1956.
A decision on the questions made in this case requires only the "application, in a general sense, of unquestioned and unambiguous provisions of the Constitution to a given state of facts, . . ." Gulf Paving Co. v. City of Atlanta, 149 Ga. 114 (1) (99 S. E. 374). The Court of Appeals, and not this court, has jurisdiction of the writ of error. Wynn v. State, 178 Ga. 193 (172 S. E. 565); Turner v. State, 185 Ga. 432 (195 S. E. 431); Sanders v. State, 186 Ga. 335 (197 S. E. 801); Baker v. State, 198 Ga. 291 (31 S. E. 2d 397); Bard v. State, 199 Ga. 232 (33 S. E. 2d 693); Rowland v. State, 199 Ga. 340 (34 S. E. 2d 577); Robinson v. State, 209 Ga. 48, 49 (2) (70 S. E. 2d 514).
Oscar W. Giles was convicted of arson, and his motion for new trial, as amended, was denied. The exception is to that judgment. The bill of exceptions recites that this court has jurisdiction of the cause because of the constitutional questions raised therein.
Ground 1 of the amended motion complains because the solicitor-general had the defendant's wife sitting at his table in full view of the jury, and assisting in enumerated ways in the prosecution of the defendant. It is asserted that, while Code 38-1604 renders a wife incompetent to give evidence against her husband, the cumulative acts of the State in using the wife to convict the defendant had the same effect as if the State had placed the wife as a witness on the stand and allowed her to testify that the defendant was guilty. It is contended that the defendant was thus denied the due process of the law provided by Code 38-1604, and his constitutional rights under the Constitution, art. I, sec. I, par. III (Code, Ann., 2-103).
Ground 2 of the amended motion recites that, while the defendant was making his unsworn statement to the jury, his wife was sitting at the table in the courtroom where the solicitor-general usually sat while trying the case, and in full view of the jury was crying and shaking her head as if in denial of the statements the defendant was making to the jury in his own defense. It is asserted that this conduct of the wife of the defendant prevented the jury from giving his statement the weight to which it was entitled under the law, and allowed the wife to be a witness against him, in violation of the provisions of Code 38-1604. It is contended that the defendant was thus denied his rights of due process of law and other rights guaranteed by the Constitution, art. I. sec. I, par. III (Code, Ann., 2-103), and art. I, sec. I, par. V. (Code, Ann., 2-105).
These two grounds contain the only constitutional questions made by the record.
George D. Lawrence, Solicitor-General, contra.
Victor Davidson, Ed Rozier, for plaintiff in error.
ARGUED JUNE 12, 1956 -- DECIDED JULY 9, 1956.
Saturday May 23 02:23 EDT

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