Allen v. State

• Decision Date: 26 March 1935
• Docket Number: No. 24367.,24367.
• Citation: 51 Ga.App. 19,179 S.E. 555
• Parties: ALLEN. v. STATE.
• Court: Georgia Court of Appeals

51 Ga.App. 19

179 S.E. 555

ALLEN.

v.STATE.

No. 24367.

Court of Appeals of Georgia,

Division No. 1.

March 26, 1935.

Syllabus by the Court.

1. The evidence supports the verdict of voluntary manslaughter.

2. The evidence failing to show that the defendant and the deceased were husband and wife, the court properly overruled the motion to rule out the testimony of two witnesses to a conversation between the defendant and the deceased upon the ground that defendant and the deceased were common-law husband and wife and communications between them were therefore inadmissible.

3. Being neither insisted upon nor mentioned in the brief of counsel for the plaintiff in error, the last special ground of the motion for a new trial is treated as having been abandoned.

Error from Superior Court, Fulton County; C. J. Perryman, Judge.

Lena Bell Allen was convicted of voluntary manslaughter, and she brings error.

Affirmed.

Jas. R. Venable, Robert McGinley, and J. B. Wood, all of Atlanta, for plaintiff in error.

John A. Boykin, Sol. Gen., J. Walter Lecraw, and E. A. Stephens, all of Atlanta, for the State.

MacINTYRE, Judge

The indictment in this case charges that Lena Bell Allen committed murder by shooting Will Allen with a shotgun. The jury found the defendant guilty of voluntary manslaughter, and, her motion for a new trial being overruled, she excepted.

The shooting occurred during the early part of the night, in a room occupied by the defendant and the deceased. There were no eyewitnesses to the tragedy. In her statement to the jury the defendant contended that she and the deceased "got to fussing." and she told him that she was going to bed, and pulled off her shoes and dress; that the deceased who had been drinking, said shehad no sense, and "kept quarreling and fussing"; that the deceased then cursed-her vilely, and said that, when he gave her money, she did not give it back to him; that she replied, "When I gave you my money you didn't give it back to me"; that the deceased said: "If you don't I will cut your God damn heart out, " and started towards her with a knife in his hand; that she reached behind her and "got the gun, and held the gun up, and told him not to come any further"; that "he come towards me with the knife, and the gun said boom, * * * and the light went out"; that she struck a match, and the deceased was lying on the floor in front of the bed, shot in the head, with a knife in his hand; and that "when I raised the barrel of the gun it shot without my knowing it."

Shortly after the shooting, the deceased was found dead, lying on the floor near the door, with a knife in his left hand. The evidence was uncontradicted that the deceased was right-handed. The knife had a wooden handle and a blade about five or six inches long. According to the testimony of an officer, the defendant described the homicide to him substantially as she did to the jury.

We are satisfied that the evidence supports the verdict of voluntary manslaughter, and we hold that the court did not err in overruling the general grounds of the motion for a new trial.

It appears from the first special ground that the witness Ollie Watts testified substantially as follows: "On the night he was killed they [the defendant and the deceased] were in the room before the shot was fired. * * * I heard them arguing first as usual, and he asked her for his clothes, he was going to get a room somewhere, and she wouldn't give him his clothes, and he asked for the money, and after that, about three or four minutes, the gun fired. * * * I heard that arguing going on in there, I guess about twenty-five minutes--they didn't argue very long. * * * When he asked for his clothes she said she was not going to give him his clothes. He said: 'Just give me my money and I will go across and get a room'. And she said she would not give him his money. I didn't hear any scuffling going on, not a thing. I didn't hear anything else said before the shot, after he asked for the money."

The ground then states that on cross-examination the witness Ollie Watts testified as follows: "Lena Bell didn't have but one room, and I haven't got but one. I knew her by the name of Lena Bell Allen. That is what she was called. I knew him as Will Allen; I never heard any one call him Bridges, I didn't know him as Bridges at all. They were living there as husband and wife, they might have been married, I don't know. I guess they lived as husband and wife, I don't know. I called her Lena Bell."

Counsel for the movant made the following motion: "We move to exclude the testimony of this witness as to anything she heard as between husband and wife. She said she heard certain statements between the two, and she has testified that she knew them as husband and wife, and the law recognizes common law marriages." The court overruled this motion.

Ella Bridges testified that the deceased was her son, was 23 years old, and was single; that her son had been living with the defendant about a year; that witness did not know whether or not they were living together as man and wife; that 3 weeks and one day before the homicide the defendant told witness that she was going to kill the deceased "if he messed with her"; and that the deceased "came home after she threatened to kill him, and was there for a few weeks, and she killed him"

Ollie Watts testified that she and her family occupied one room in the house where the homicide occurred, and the defendant occupied another room in that house, and "Will Allen, or Will Bridges, stayed with her, " and that they did not come there at the same time, but that "she moved into the house by herself" and "Will came about a month after she moved in there."

Tom Watts, the husband of Ollie Watts, testified as follows in regard to what he heard in the room where the homicide was committed: "I had gone to bed. * * * I heard them arguing, and she said: "You hit me last Saturday night, and you had better not hit me this Saturday night' Then * * * he asked her to give him his money back and he would go and get a room. She said: T am not going to give you...