Bentley v. State, 48573

• Decision Date: 07 March 1974
• Docket Number: Nos. 1,No. 48573,3,2,48573,s. 1
• Citation: 205 S.E.2d 904,131 Ga.App. 425
• Parties: Alvin D. BENTLEY v. The STATE
• Court: Georgia Court of Appeals

Page 904

205 S.E.2d 904

131 Ga.App. 425

Alvin D. BENTLEY v. The STATE.

No. 48573.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

March 7, 1974.

Rehearing Denied March 29, 1974.

Gilbert, Wilkerson & Hill, Fred A. Gilbert, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Morris H. Rosenberg, Robert A. Weathers, Carter Goode, Atlanta, for appellee.

Syllabus Opinion by the Court

CLARK, Judge.

Defendant's appeal is from conviction on two counts of aggravated assault charging him with shooting a pistol at others. The The incident occurred after defendant's son had been robbed by some youngsters in the neighborhood. After the police had been unable to apprehend any suspects, accused and his son went to the area looking for the culprits. When the son saw and identified two boys in the yard of a residence belonging to a Mrs. Myricks, defendant descended from his car and accosted them. There is a conflict as to subsequent events. Defendant's contention was that he demanded a return of the stolen property and his son's watch was surrendered. Then, at that point in time, ¹ two shots were fired from an unknown source, so he returned to his automobile, obtained a pistol and fired three shots into the ground but at no person and then departed.

first count was based on wounding a child and the second charged him with shooting at two other persons.

The state's witnesses testified that the defendant's statement to the boys was inaudible, and was followed by defendant shooting at the boys as they scurried away along with the little girl who was the only one hit by the bullets and thereafter defendant left the scene.

There are fifteen enumerations of error including five devoted to the general grounds that the verdict and judgment is contrary to the law and not supported by the evidence.

1. 'Attention is . . . called to the rule that in every case where a verdict has been rendered by a jury and has received the approval of the trial court, the evidence given in support thereof must be construed most strongly toward the prevailing party in the trial court, that is, most strongly in favor of supporting the verdict. It must be construed 'in its most favorable light to the prevailing party, . . . for every presumption and inference is in favor of the verdict.' (Cits.)' Ryder v. State, 121 Ga.App. 796, 798, 175 S.E.2d 882.

2. 'A person commits aggravated assault when he assaults . . . (b) with a deadly weapon.' Code Ann. § 26-1302. Assault is defined as 'when he either (a) attempts to commit a violent injury to the person of another or (b) commits an act which places another in reasonable apprehension of immediately receiving a violent injury.' Code Ann. § 26-1301. The offense of shooting at another 'is a form of aggravated assault.' Copeland v. Dunehoo, 36 Ga.App. 817, 822, 138 S.E. 267, 269.' Hart v. State, 55 Ga.App. 85(2), 189 S.E. 547.

3. Witnesses for the defendant testified as to his having a pistol in his hand and firing three shots but not at any person, only into the ground. The conflicting versions of the testimony between the defense and state witnesses concerning the direction in which defendant had pointed his pistol and the number of shots fired by defendant as well as the other evidentiary conflicts were resolved by the jury in favor of the state. 'In the instant case, 'the conflicts in the evidence were questions for the trier of fact and not one of law for this court.' Hopkins v. Sicro, 107 Ga.App. 691, 693, 131 S.E.2d 243.' Stewart v. State, 128 Ga.App. 11, 13, 195 S.E.2d 251, 252. This case comes 'under the general rule that when evidence is contradictory the jury may believe the evidence which they think is most entitled to belief. Ford v. State, 92 Ga. 459, 461, 17 S.E. 667.' Mitchem v. State, 53 Ga.App. 280, 281, 185 S.E. 367, 368.

4. Under the general grounds defendant argues that contradictions on material facts as between the various State witnesses warrant reversal. We have examined the specific contradictions and find they are not such as to constitute error.

' Rare it is that the most truthful can after a lapse of months, repeat the material details of an event with complete accuracy.'

Georgia Railroad, etc., Co. v. Flynt, 93 Ga.App. 514, 527, 92 S.E.2d 330, 340. The alleged inconsistencies go to credibility. 'The credibility of a witness is a matter to be determined by the jury under proper instructions from the court.' Code § 38-1805. The trial judge here charged the jury on the principle of credibility of witnesses in such a manner that they were sufficiently instructed as to how they were to weigh alleged contradictions in testimony.

5. 'After a verdict, approved by the trial court, the evidence must be construed by this court in its light most favorable to the prevailing party with every presumption and inference being in favor of upholding that verdict. (Cits.)' Green v. State, 123 Ga.App. 286, 287, 180 S.E.2d 564, 566. The evidence supports the verdict on both grounds of aggravated assault and the five enumerations of error on general grounds contending the verdict to be unsupported by the facts or the law are without merit.

6. Objection was made to a statement by the district attorney in his closing argument that '. . . Mrs. Myricks came in here today and brought me some bullets and things, she not knowing about chain of evidence.' Indeed, the argument was improper. There were only two pieces of physical evidence in the case. One was a spent bullet which, although fully and properly identified, was not offered in evidence by the district attorney. The other physical evidence was two shall casings the tender of which was withdrawn by the district attorney. However, although the argument was erroneous and the trial judge erred in not taking corrective action, the error was harmless as the transcript is replete with positive uncontradicted testimony admitted without objection to the effect that the defendant fired a gun and that spent bullets and shell casings were found. Fountain v. State, 23 Ga.App. 113(7), 98 S.E. 178.

7. The next two enumerations of error (numbers 8 and 9) contend the court erred 'In admitting testimony in the district attorney's argument not given during the trial' and 'in allowing the admission of the district attorney's personal feeling and testimony'.

"It has been held by this court many times that, when improper argument is made to the jury by an attorney for one of the parties, it is necessary, in order to make the same a basis for review, that opposing counsel make proper objection to it at the time made or invoke some ruling or instruction from the courr respecting it, either by way of reprimanding counsel, or of instructing the jury to disregard it, or of declaring a mistrial. A party can not during the trial ignore what he thinks to be an injustice, take his change on a favorable verdict and complain later (Cits.)." Joyner v. State, 208 Ga. 435, 438, 67 S.E.2d 221, 224. (Also subsequently quoted with approval in Johnson v. State, 226 Ga. 511, 514(5), 175 S.E.2d 840 and Daniels v. State, 230 Ga. 126, 127, 195 S.E.2d 900). As defendant did not follow the above requisites and made no objections of any type in regard to enumerations numbers 8 and 9, they cannot be considered by this court on appeal. Kingston v. State, 127 Ga.App. 660, 662(4), 194 S.E.2d 675.

8. Appellant's next assignment contends the court erred in denying defendant's motion for mistrial made upon the mother of the wounded child being permitted to testify that the child said 'Mama that man shot me.' The motion was based upon this answer constituting hearsay. The court ruled the statement was a part of the res gestae. The mother's testimony indicated the child's statement was made immediately after she fell through the door, that she was still on the floor in the doorway, and that the defendant was in the yard with the gun pointed at the house, and still pulling the trigger, although there were no more shots.

'Declarations accompanying an act, or so nearly connected therewith in time as to be free from all suspiction of device or afterthought, shall be admissible in evidence as part of res gestae.' Code § 38-305. McBride v. State, 119 Ga.App. 418, 420, 167 S.E.2d 374, 376, quotes from Green, Georgia Law of Evidence, p. 591, § 293, 'that an opinion or conclusion is admissible, if 'spontaneous or reflective rather than a reasoned one arrived at deliberately after thoughtful consideration."

'At the time the deceased was shot, and immediately after the witness heard the gunshot, he testified that the deceased cried out 'Junior, they done shot me.' These remarks, made by the deceased at the time of the shooting, would be a part of the res gestae and so connected with the alleged crime as to be admissible evidence as a part thereof. (Cits.)' McKinney v. State, 121 Ga.App. 815(2), 175 S.E.2d 893. See also Ayers v. State, 215 Ga. 325, 326, 110 S.E.2d 669, where the statement was held admissible as part of the res gestae, since it was made a few minutes after the deceased had been shot and while the defendant was shooting at the automobile to which deceased had been taken by a witness.

'The testimony of the witness that she saw the deceased and the defendant pushing each other and had gone back in her room and in about two minutes the deceased knocked on her door and when she opened it stated that the defendant 'stabbed me out there a while ago,' was admissible as part of the res gestae. (Cits.)' Gates v. State, 120 Ga.App. 518(2), 171 S.E.2d 375.

Mitchell v. State, 71 Ga. 128, is cited by defendant but it actually supports the state's position: 'Where a witness reached the scene of a conflict in a very few minutes after the deceased fell, and assisted in bearing him away, and when they had gone about thirty or forty steps the wounded man asked the witness, 'What did you shoot me for?'-the whole transaction not occupying more than five minutes-such facts were a part of...