Joyner v. State
| Decision Date | 10 October 1951 |
| Docket Number | No. 17544,17544 |
| Citation | 208 Ga. 435,67 S.E.2d 221 |
| Parties | JOYNER v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. In the absence of a proper request therefor, the charge as given upon malice--a necessary element of murder was sufficient. If the defendant desired fuller instructions upon that subject of the law, the same should have been timely requested.
2. When improper argument is made to the jury by an attorney for one of the parties, it is necessary, in order to make the same a basis for review, that opposing counsel, during the trial, properly object to such argument or invoke some ruling or instruction with reference thereto by the court. A party cannot during the trial ignore what he thinks to be an injustice, take his chance on a favorable verdict, and complain later.
3. It is not erroneous for the trial judge to overrule a motion for a mistrial, when, in answer to a question propounded by the solicitor-general, evidence is elicited from a witness which tends to put the character of the accused in issue, where, upon objection by counsel for the accused, such evidence is excluded and the jury is instructed to disregard the question and the responsive answer.
4. 'In order to reduce a homicide from murder to voluntary manslaughter, on the theory of mutual combat, it should affirmatively appear that at the time of the homicide both parties were in position and manifested an intention to fight.'
(a) There being no evidence showing mutual combat, the court did not err in failing to charge the law of voluntary manslaughter as applicable to mutual combat.
5. The evidence authorized the verdict.
Alexander S. Boone, Jr., Victor Davidson, Irwinton, for plaintiff in error.
C. S. Baldwin, Jr., Sol. Gen., Milledgeville, Eugene Cook, Atty. Gen., R. L. Addleton, Asst. Atty. Gen., for defendant in error.
Charlie Joyner Jr. was indicted and convicted, in the Superior Court of Wilkinson County, of the murder of Clinton Taylor. The jury recommended mercy and he was sentenced to life imprisonment. His motion for a new trial, as amended, was overruled and he excepted. All of those present at the time of the homicide testified as witnesses for the State, and their evidence in substance shows: The accused and the deceased met and were together at a store in Irwinton during the afternoon of December 10, 1950. They were joking or teasing each other about something concerning pine or broom straw. Their joking or teasing culminated in an argument between them, during the course of which the deceased called the accused a damn liar. The accused started out of the store and told the deceased not to repeat what he had just said. The deceased followed the accused a few feet to the front door of the store and again called him a damn liar. At that time the accused slapped the deceased and left the store. After the accused left and on finding that he did not have his knife, the deceased looked for a pistol at the place in the store where the owner usually kept one, but found none. Jim Bell's unloaded shotgun was in the store, and one of the witnesses took and kept possession of it. The accused, shortly after his leaving, returned to and re-entered the store with a pistol in his hand, and, without speaking to any one, immediately began shooting at the deceased, who was then standing in the store. The first shot missed the deceased, striking the counter about two feet from the floor; the next two entered his body near the heart, producing death almost instantly. The accused then left the store. The deceased did or said nothing to the accused upon his return to the store, except one of the witnesses testified that he picked up a stool he was standing by as the accused entered the front door of the store with a pistol in his hand, but another witness said that he did not pick up the stool until after the accused had shot at him the first time. One of the witnesses said that the accused was out of the store for two or three minutes between the first encounter and the shooting. Another said that he was away four or five minutes before he came back; and Alec Bell testified that he was out long enough to go to his home and back. The deceased, according to the testimony of all of the witnesses, had no weapon, except the stool; and one of the witnesses said that he held it up in front of himself with its legs pointing toward the accused; and another witness said that he picked it up after he was first shot at and threw it at the accused. The defendant made a statement to the jury, which agreed fully with the State's evidence as to his first encounter with the deceased. He also stated: that he returned to the store for the purpose of getting some cigarettes which he had purchased when first there, but which he left; that, when he entered the store, the deceased was standing back of the counter and Oscar Willie Robertson had a shotgun; that the deceased came from behind the counter, picked up a stool and started toward him like lightning; that he told the deceased to get back, but he kept coming on him; that he first shot into the floor, thinking that would stop him, but it did not; and that he then shot the deceased, who was by then within a foot of him, and the deceased 'went down with the stool.' The defendant said nothing about his possession of the pistol.
1. The court charged literally Code, §§ 26-1002, 26-1003, and 26-1004, defining murder, express malice, and implied malice. He also instructed the jury that The charge is attacked upon the ground that the court, in connection with his charge on malice as an element of murder, failed to tell the jury that, if the State's evidence showed circumstances of alleviation, mitigation, or justification, the burden of proving malice would not be carried by the State. There is no merit in this. So far as the record shows, there was no request for a fuller charge upon the subject of malice than that given by the court, and it is settled by this court that, in the absence of such a request, the charge as given was sufficient. Mann v. State, 124 Ga. 760, 53 S.E. 324, 4 L.R.A.,N.S., 934; Rouse v. State, 183 Ga. 551, 188 S.E. 904. And that is especially true in this case, since the judge elsewhere in his charge specifically instructed the jury that the burden was on the State to prove every necessary element of the offense charged to a moral and reasonable certainty and beyond a reasonable doubt.
2. During his argument, the solicitor-general stated to the jury: 'He (meaning the defendant) walked in the door with a pistol in his hand and they (the people in the store) already knew what he (the defendant) would do with a pistol.' It is not necessary for us to determine whether or not such argument was proper or improper; and this is so because its alleged impropriety was first called to the court's attention and complained of in the amendment to the defendant's motion for a new trial, which was too late. It has been held by this court many times that, when improper argument is made to the jury by an attorney for one of the parties, it is necessary, in order to make the same a basis for review, that opposing counsel make proper objection to it at the time made or invoke some ruling or instruction from the court respecting it, either by way of reprimanding counsel, or of instruction the jury to disregard it, or of declaring a mistrial. A party cannot during the trial ignore what he thinks to be an injustice, take his chance on a favorable verdict, and complain later. Code, § 81-1009; Croom v. State, 90 Ga. 430, 17 S.E. 1003; Farmer v. State, 91 Ga. 720, 18 S.E. 987; Kearney v. State, 101 Ga. 803, 29 S.E. 127, 65 Am.St.Rep. 344; O'Dell v. State, 120 Ga. 152, 155, 47 S.E. 577; Benton v. State, 185 Ga. 254, 194 S.E. 166; Mims v. State, 188 Ga. 702, 4 S.E.2d 831; Brooks v. State, 183 Ga. 466, 188 S.E. 711, 108 A.L.R. 752.
3. On redirect examination of the State's witness, Katie Willis, the solicitor-general asked: 'Do you remember last year when he (meaning the defendant) shot another negro in the belly?' The...
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...the trial ignore what he thinks to be an injustice, take his chance on a favorable verdict, and complain later." Joyner v. State, 208 Ga. 435(2), 67 S.E.2d 221 (1951). Objections to argument ordinarily can not be raised for the first time after trial. McAllister v. State, 231 Ga. 368(1), 20......
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