Barber v. State, 36703

Decision Date17 May 1957
Docket NumberNo. 2,No. 36703,36703,2
Citation98 S.E.2d 575,95 Ga.App. 763
PartiesWilliam BARBER v. The STATE
CourtGeorgia Court of Appeals

Grace W. Thomas, Reuben A. Braswell, Atlanta, for plaintiff in error.

Paul Webb, Sol. Gen., Eubene L. Tiller, Atlanta, for defendant in error.

Syllabus Opinion by the Court

TOWNSEND, Judge.

1. The defendant William Barber was indicted, tried and convicted on a charge of assault with intent to murder in two counts, which were identical except as to the name of the person alleged to have been assaulted. Count 1 charges the accused with the offense of assault with intent to murder 'for that the said accused, in the County of Fulton and State of Georgia, on the 18th day of February, 1956, with force and arms, did unlawfully, with malice aforethought assault, shoot at and towards one Allen Maddox with a pistol, the same being a weapon likely to produce death, with intent then and there to kill and murder the said person so assaulted, contrary to the laws of said State, the good order, peace and dignity thereof.' The indictment sufficiently alleges an assault and is not subject to general demurrer. Prior v. State, 41 Ga. 155; Rawls v. State, 72 Ga.App. 400(1), 33 S.E.2d 884.

2. 'On a prosecution for a particular crime, evidence which in any manner shows or tends to show that the accused has committed another crime wholly distinct, independent, and separate from that for which he is on trial, even though it be a crime of the same sort, is irrelevant and inadmissible, unless there be shown some logical connection between the two from which it can be said that proof of the one tends to establish the other.' Bacon v. State, 209 Ga. 261, 71 S.E.2d 615, 616.

(a) Where acts, either prior or subsequent, closely connected in point of time, tend to show motive, intent, and state of mind on the part of the defendant regarding the offense for which he is on trial, and thus tend to prove the charge at issue, they are admissible although they incidentally at the same time show other criminal or unfavorable conduct. Gibson v. State, 11 Ga.App. 148, 74 S.E. 905; Adams v. State, 55 Ga.App. 729, 191 S.E. 280. Evidence is also admissible to show other attempts to perpetrate the same offense on the same victim. Wright v. State, 184 Ga. 62, 190 S.E. 663. Accordingly, it was not error, as contended in special ground 1 of the amended motion for a new trial to admit evidence that on the Monday before or after the defendant assaulted the victim on a Friday, allegedly with intent to murder him, the defendant came to the house of another looking for the victim, and stated that 'he was going to kill him when he seed him out.'

(b) It was, however, error, as contended in special ground 2 to admit in evidence over proper objection a certified copy of a murder indictment and conviction for an act committed 13 years before, the charge being that the defendant killed the victim therein named 'by then and there striking, beating and wounding him with some blunt instrument to the grand jurors unknown.' This evidence was not admissible under any exception to the rule stated in Bacon v. State, 209 Ga. 261, 71 S.E.2d 615, supra. Neither was it admissible for purposes of impeachment on the theory that the defendant had put his character in issue by stating, after describing his version of the transaction: 'I haven't committed no crime. I don't own a gun. I have never carried one. I make an honest ...

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13 cases
  • Simmons v. State
    • United States
    • Georgia Court of Appeals
    • March 14, 1985
    ...Evidence is also admissible to show other attempts to perpetrate the same offense on the same victim. (Cit.)' Barber v. State, 95 Ga.App. 763, 764 (98 SE2d 575) (1957)." Buffington v. State, 171 Ga.App. 919, 922, 321 S.E.2d 418 (1984). See Hewitt v. State, 127 Ga.App. 180(4), 193 S.E.2d 47 ......
  • Ailstock v. State, 61822
    • United States
    • Georgia Court of Appeals
    • September 10, 1981
    ...testimony on direct examination did not, however, have the effect of placing his general character in issue. See Barber v. State, 95 Ga.App. 763, 764(2b), 98 S.E.2d 575 (1957). It was, therefore, impermissible for the prosecutor to couch her cross-examination of appellant in terms of prior ......
  • Brown v. State, 43614
    • United States
    • Georgia Court of Appeals
    • November 8, 1968
    ...Compare Wiggins v. State, 80 Ga. App. 258, 260 (55 SE2d 842); Folds v. State, 90 Ga. App. 849, 852 (84 SE2d 584); Barber v. State, 95 Ga. App. 763 (2b) (98 SE2d 575). See generally, Sikes v. State, 76 Ga. App. 883, 884 (47 SE2d 677); Carroll v. State, 77 Ga. App. 251, 253 (48 SE2d The line ......
  • Curtis v. State
    • United States
    • Georgia Court of Appeals
    • December 5, 1960
    ...are such as to illustrate the state of the defendant's mind on the subject involved, proof of them may be received. Barber v. State, 95 Ga.App. 763, 98 S.E.2d 575; Sanders v. State, 54 Ga.App. 238, 187 S.E. 608; Jones v. State, 41 Ga.App. 277, 152 S.E. 591; Hayes v. State, 36 Ga.App. 668, 1......
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