O'Berry v. State

• Decision Date: 17 August 1922
• Docket Number: 3216.
• Citation: 113 S.E. 203,153 Ga. 880
• Parties: O'BERRY ET AL. v. STATE.
• Court: Georgia Supreme Court

113 S.E. 203

153 Ga. 880

O'BERRY ET AL. v. STATE.

No. 3216.

Supreme Court of Georgia

August 17, 1922

Syllabus by the Court.

On the trial of one charged with murder, the following material evidence of a witness, with reference to utterances of the deceased after he had been shot, was not inadmissible on the ground that it was merely the conclusion of the witness. It is a statement of fact; to wit: "Yes, hollered like a man in distress some way, hollered for help, mercy, or something like that. I could not say just positively what I understood him to say, but a distressful hollering." See Vincent v. State, 153 Ga. 278, 112 S.E. 120; Pride v. State, 133 Ga. 438, 66 S.E. 259.

It was not error to allow a witness to testify, over the objection that it was the conclusion of the witness, without giving facts upon which to base such conclusion, the following "I would think it would leave a sign on his hat; to bust a man's forehead, and not hurt the hat, and leave no sign on it, looks impossible to me like; I might be wrong," where it appears from the evidence in the record that the witness did give facts upon which to base such conclusion.

It was error to admit the following evidence of the sheriff, over objection that it was irrelevant, argumentative, and was merely the conclusion or opinion of the witness "Generally I feed the boys three times a day, and talk with them, and I asked them, What did they think about it and they said they did not know, 'What did I think about it? and I told them, 'I don't hardly know, boys.' I says, 'They have convicted your mother; and if you boys continue with your same story, I believe they will convict both of you;' and they said, Well, how would they do? and I told them the only chance I seed for them about this, from what I knew about it and so on, would be to plead guilty to get out of it, and they might put up some defense and get a life imprisonment."

Ground 5 of the motion for new trial, with reference to the alleged disqualification of one of the jurors, is not approved by the trial judge, and will not, therefore, be considered.

Error is assigned on the ground that the judge did not "define what circumstantial evidence was, so that the jury might know that the evidence of the state in the case depended wholly upon circumstantial evidence." The court did charge the jury: "To authorize conviction on circumstantial evidence, the proved facts must be consistent with the theory or hypothesis of guilt, and must exclude every other reasonable hypothesis, except that of the guilt of the accused." A failure of the court specifically to define what circumstantial evidence was, in the absence of a timely request, will not require a reversal.

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