Bell v. State
| Decision Date | 22 June 1944 |
| Docket Number | 30538. |
| Citation | 31 S.E.2d 109,71 Ga.App. 430 |
| Parties | BELL v. STATE. |
| Court | Georgia Court of Appeals |
Rehearing Denied July 20, 1944.
Syllabus by the Court. [Copyrighted Material Omitted]
Wyatt & Morgan and Wright Lipford, both of La Grange, for plaintiff in error.
L L. Meadors, Sol. Gen., of La Grange, for defendant in error.
The defendant was convicted of involuntary manslaughter in the commission of an unlawful act. He filed a motion for a new trial on the general grounds, and afterwards added twelve special grounds. The court overruled the motion and the defendant assigns error on that judgment.
1. As to the general grounds the brief of evidence covers approximately one hundred pages. After a careful study of it we are convinced that it would serve no good purpose to give it in detail here in order to determine whether the verdict rendered should be reversed. The State introduced one apparently disinterested eyewitness who testified as follows "When my car drowned out I got out and went back to the Bell filling station and asked a lady who was in there could I use the telephone. I didn't know Mr. J. H. Bell; I didn't know anybody not a soul in the store. Bettie went with me in there. I went in the business part. When I got in the station and asked could I use the telephone I could see the telephone. It was in a little window cut in the partition of this filling station. You could use it from the residence side and the filling station side. I called Mr. Houston, and from the information I got from him I called Mrs. Williams's home, and called for my husband. He never did get to the phone. Mrs. Williams answered the phone. I called for my husband. I heard him coming down the steps, I was holding the 'phone; I had the 'phone to my ear like that (indicating), and a shot went off, some kind of noise. I thought it was a firecracker. I heard this girl scream. She screamed, I had the telephone to my ear like that, and I saw a man with a pistol in his hand pointed directly at the girl.
The girl was going down to the floor. Some young girl caught her as she fell; some young lady caught her as she fell. I didn't hear but one shot. If there was any more I didn't hear it. As to how many people I saw in that room, I answer I saw the man that shot the girl,--that held the gun. The girl was falling, and the other girl caught her. That is only three I saw.
The deceased, the daughter of the defendant, died from the wound shortly after it was inflicted. There was evidence throughout the record from which the jury could have inferred that at the time of the homicide the defendant was very much under the influence of intoxicating liquors. There was also evidence to the effect that on a number of occasions previous to the homicide, and within a few weeks of it, the defendant while in an intoxicated condition had difficulties with his family, and on those occasions had his gun out. The evidence reveals that at least on one occasion he was pointing his gun at his wife, threatening to kill her, and that the deceased and her sisters had remonstrated with him and had endeavored to get the pistol from him in order to prevent his using it. On this particular point a witness who was present on that occasion testified:
The defendant contended, in his statement and by the introduction of considerable evidence, that the pistol was accidentally fired; that he did not intentionally point or aim the pistol at and toward the deceased. From the evidence which we have quoted above from the record, in connection with all the facts and circumstances of the case, the evidence warranted the charge by the court to the jury the law on the question of involuntary manslaughter while in the commission of an unlawful act,--that is, while intentionally and illegally pointing a pistol at another. Under this record, reflecting the condition of the defendant, and his previous conduct, we are lead to believe that the jury took a very charitable view toward the defendant. Doubtless this was due to the fact that when he realized what he had done, his punishment beyond the law was hardly endurable. It is earnestly urged by counsel for the defendant, and with force, that the State's witness did not see the pistol pointed at the deceased until after the pistol fired, but what she heard and saw was a part of the res gestae and was in such close succession that in connection with the other evidence, as we have stated, it is sufficient to sustain the verdict. The defendant introduced a number of witnesses, photographs, and calculations, in an effort to discredit or impeach the testimony of the State's witness. This evidence was to the effect that it was impossible for the witness to have seen the defendant and the deceased from where she was standing at the time the shot was fired. We have studied this record carefully as to this point, and have come to the conclusion that it was a jury question as to whether the witness could see, as she testified, while standing at the telephone. The jury settled this issue adversely to the accused. As to whether or not manslaughter was involved, under the record, we are convinced that it was. If it were doubtful, under the evidence, it was the duty of the trial court to charge involuntary manslaughter in the commission of an unlawful act, and let the jury decide the grade. Booker v. State, 153 Ga. 117, 111 S.E. 418; Drane v. State, 147 Ga. 212, 93 S.E. 217; Gamble v. State, 58 Ga.App. 637, 199 S.E. 662; Thomas v. State, 51 Ga.App. 455(2), 180 S.E. 760. The court did not err in denying the motion for new trial for any of the reasons assigned, so far as the general grounds are concerned.
2. Special ground 1: The court, at the instance of the State, sustained an objection that Mrs. Bell, wife of the defendant, told a witness that after the shooting she put the pistol away. It is contended that this denied the defense the right of a thorough and sifting cross-examination under the Code, § 38-1705. This was purely hearsay testimony. Moreover, the statement from the wife of the accused was made outside the presence of the defendant and was not a part of the res gestae. Bowen v. State, 36 Ga.App. 666, 667, 137 S.E. 793. This section does not empower the opposite party to get before the jury illegal testimony. The court did not err in sustaining the objection.
3. Special ground 2: During the progress of the trial the sheriff testified concerning the intoxicated condition of the deceased at the scene of the homicide, and stated that it...
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