Askew v. State, s. 50605
| Decision Date | 09 June 1975 |
| Docket Number | 50732,No. 2,Nos. 50605,s. 50605,2 |
| Citation | 135 Ga.App. 56,217 S.E.2d 385 |
| Parties | B. L. ASKEW v. The STATE. Clarence HAMMETT v. The STATE |
| Court | Georgia Court of Appeals |
Trotter & Zachry, Alfred F. Zachry, LaGrange, for B. L. askew.
Kenneth L. Gordon, Hogansville, for Clarence Hammett.
E. W. Fleming, Dist. Atty., Robert H. Sullivan, Asst. Dist. Atty., Hogansville, for appellee.
Defendants were jointly indicted and tried for the murder of Bertha Mae Goode. Their motions for a severance were overruled. The jury found both defendants guilty of voluntary manslaughter. Defendant Askew testified that he was drunk and did not remember the incident. Defendant Hammett then took the stand and testified that Askew shot the deceased. After completion of his direct testimony, the district attorney cross-examined Hammett as follows:
Upon objection by counsel for Hammett the district attorney said he would not pursue the matter but counsel for Askew contended that Hammett's character had been placed in evidence and offered an indictment for murder and a conviction for voluntary manslaughter in which Hammett had entered a plea of guilty. The court admitted the evidence of the prior conviction. Appellant Hammett appeals, contending that his character was improperly placed in issue, the prior conviction should not have been admitted, and the additional evidence denied him the right to opening and closing argument. The defendant Askew appeals on the ground that there is insufficient corroboration of the statement of his co-defendant. Held:
1. The general character of the defendant is irrelevant and inadmissible unless he chooses to put it in issue. Walker v State, 86 Ga.App. 875, 877(1), 72 S.E.2d 774; Code § 38-202. It is the option of the defendant alone whether or not to place his general character in issue. Barnes v. State, 24 Ga.App. 372(3), 100 S.E. 788; Hyatt v. State, 116 Ga.App. 18, 19, 156 S.E.2d 147; Bacon v. State, 209 Ga. 261, 262, 71 S.E.2d 615. In the instant case the state elicited the answers from defendant on cross-examination that precipitated this issue, the ruling of the judge, and the introduction of the prior conviction for manslaughter. It is unnecessary to determine whether the answers elicited by the state placed defendant's character in issue because the judge held that they did and permitted the introduction of the impeaching evidence. It is necessary only that we find that the defendant did not place his character in issue. It was the state that insisted upon a joint trial, and it was the state that opened the door on cross-examination, and they cannot complain if the co-defendant walked through. Introduction of such damaging evidence requires reversal as to the defendant Hammett. Pressley v. State, 91 Ga.App. 693, 86 S.E.2d 655; Bacon v. State, 209 Ga. 261, 264, 71 S.E.2d 615.
2. Appellant Askew asserts that the court erred in denying his motion for a new trial on the ground that the testimony of the alleged accomplice, Clarence Hammett, was not supported by sufficient corroborating evidence. We agree. These codefendants were jointly indicted, tried and convicted. The state contended, and apparently proved to the satisfaction of the trial court and jury, that they were jointly liable for the death of the deceased. Thus, although defendant Hammett provided the only evidence of events surrounding the actual death of the deceased, and denied that he took any part in the planning or infliction of the mortal wound, the state's indictment, trial and conviction of both accused as joint participants necessitates this court's application of the rule that to sustain a conviction for a felony, the testimony corroborating that of the accomplice must be sufficient to connect the defendant with the perpetration of the crime and tend to show his participation therein. McPherson v. State, 96 Ga.Pp. 839(1),101 S.E.2d 750; Sutton v. State, 104 Ga.App. 552(1), 122 S.E.2d 303. Facts which merely cause a grave suspicion of guilt are not sufficient. Dennis v. State, 201 Ga. 53, 56, 38 S.E.2d 832. The...
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...of the evidence was harmful to him under the authority of Bacon v. State, 209 Ga. 261, 71 S.E.2d 615 (1952) and Askew v. State, 135 Ga.App. 56, 57(1), 217 S.E.2d 385 (1975). The apparent purpose of the state's evidence was to ascertain whether or not the witness had ever seen the appellant ......
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