Battle v. State

• Decision Date: 15 February 1946
• Docket Number: 31057.
• Parties: BATTLE v. STATE.
• Court: Georgia Court of Appeals

36 S.E.2d 873

73 Ga.App. 476

BATTLE v. STATE.

No. 31057.

Court of Appeals of Georgia, Division No. 1.

February 15, 1946

Syllabus by the Court.

1. Where the defendant in a criminal case was aware of the presence of the permanent location of certain objects and things at the scene of the crime and took no steps to secure the evidence here in question of the witness Banks, though the scene of the crime was accessible to defendant or his counsel, a discovery after the trial of the size and location of such permanent objects is not newly discovered evidence as would furnish the grounds of motion for new trial--especially where such evidence was largely opinionative.

2. Where 'the two witnesses, Minnie Lee Walker and Tommie Lee Dennis, would not sign the affidavits which they said spoke the truth and which are attached hereto which signing he and his counsel had heretofore relied upon, and movant therefore prays that this [the trial] court will use its powers to send out and get them and bring them before it that the facts given may be verified and the verification made a part of this record,' Held The defendant did not comply with Code, § 38-2401, which makes provisions for obtaining the evidence of witnesses under such circumstances nor did he comply with the provisions of Code, § 70-205, as to supporting affidavits showing the character, associations etc., of the witnesses whose newly discovered evidence was a basis for the motion for new trial. In these circumstances the judge did not abuse his discretion in refusing a new trial on the ground of newly discovered evidence.

3. The evidence authorized the verdict.

D L. Churchwell, of Macon, for plaintiff in error.

Chas. H. Garrett, Sol. Gen., of Macon, for defendant in error.

MacINTYRE Judge.

The defendant, Battle, was indicted for an assault with intent to murder and found guilty of unlawfully shooting at another. His motion for new trial was overruled and he excepted.

1. The prosecutor testified that he and the defendant lived next door to each other on an alley or back street in Macon, Georgia; that there is a picket fence around the house of the defendant about four and one-half feet high; that the front porch of the defendant's house was standing on about a level with the fence which was only a few feet away; that they had some words; that the defendant threw a brick at the prosecutor, who in return threw a brick at the defendant; that this happened while they were standing in the alley in front of their houses; that the defendant rushed upon his porch and the woman with whom he was living delivered him a pistol; that he defendant, while standing on his porch, shot at the prosecutor in the alley and this shot missed him, but, as the prosecutor ran up hill in the alley, the defendant shot at him a second time and hit him in the back inflicting a wound; that, thereafter, as soon as they could obtain a conveyance, he was carried to the hospital and treated; that the doctor who treated the prosecutor testified in part as follows: 'As to what would be my opinion as a physician that the course of the bullet would indicate--the angle from which it was fired would seem likely that the bullet was fired from the back and right and perhaps, but not certainly, from an elevated angle. I believe that the wound of entrance is slightly higher than the point where the bullet struck the rib, the broken rib on the other side. I think that would indicate the bullet was slanting downward; that is my idea. The wound to the patient was not particularly dangerous. I think it is fairly obvious that to shoot a man in the back is a dangerous thing to do.' This seems to corroborate the prosecutor who testified that he was shot from an elevation such as the porch of the defendant's house, as the bullet ranged downward, and was not shot from the ground as was contended by the defendant.

There were two other witnesses for the State who corroborated the prosecutor that the defendant, after the first throwing of bricks, as above stated, ran upon his porch where he was given a pistol at his front door by the woman he lived with and thereupon shot at the prosecutor who was standing in the alley, and missed him with the first shot; that the defendant then shot at the prosecutor a second time from the rear as he was fleeing up the hill in the alley, hitting him in the back. The defendant and two of his other witnesses claim that the prosecutor was advancing in the alley upon the defendant with a knife, while defendant was standing in the gate of his front yard, and that the defendant told him to stop; that the prosecutor would not stop so he fired upon him and missed and as the prosecutor continued to advance, he fired a second shot which struck the prosecutor.

Some question arose during the progress of the trial as to the physical facts that existed at the place and surroundings where the shooting occurred, and, as it appears from the record, the city officer and the solicitor-general, on the second and last day of the trial, and before court met on that day, went out to the scene of the shooting to examine the physical facts as they existed; that, thereafter, the detective, in testifying to the physical facts there, stated, among other things, that in his opinion the porch was between 4 feet and 4 1/2 feet high.

Special ground one in the motion for new trial was on newly discovered evidence and in support thereof, defendant introduced the affidavit of James Banks, accompanied by the supporting affidavits of two witnesses as to his character, associates, etc., as provided in Code, § 70-205. Banks, in his affidavit, testified that he had visited the scene of the shooting since the trial; that he had measured the height of the fence in question; that a place was pointed out to him as the place where the defendant was standing on the porch when he shot the prosecutor; that he swore in the affidavit that if the prosecutor had been in the alley this could not have been done, as contended by the State, on account of the height of the fence which was between the porch and the alley; 'that the lowest paling in said fence from the ground to its top is four feet, 8 inches high and that all of said palings are higher than this and that the highest...