Black v. State
| Decision Date | 13 October 1938 |
| Docket Number | 12289. |
| Citation | 199 S.E. 810,187 Ga. 136 |
| Parties | BLACK v. STATE. |
| Court | Georgia Supreme Court |
Rehearing Denied Nov. 19, 1938.
On Motion for Rehearing.
Error from Superior Court, Fulton County; James C. Davis, Judge.
Joe Black was convicted for murder, and he brings error.
In homicide prosecution, admission of testimony that deceased had ordered defendant out of deceased's store two or three years before the homicide for working a gambling game on deceased's customers was not error, and the remoteness of the testimony in point of time would be considered by the jury in determining the weight to be given the testimony where defendant denied that he committed the homicide and sought to establish an alibi.
H. A Allen, of Atlanta, for plaintiff in error.
John A Boykin, Sol. Gen., J. Walter LeCraw, M. J. Yeomans, Atty. Gen., Ellis G. Arnall, Asst. Atty. Gen., and E. J. Clower, of Atlanta, for the State.
1. The testimony of two alleged eye-witnesses to the homicide by pistol wounds, and of corroborative witnesses, who testified that they saw the defendant in an automobile near the scene just prior thereto, although controverted by alibi testimony for the defendant, and by his statement to the jury that he was then two or three miles distant in a night-club, authorized the verdict of guilt of murder.
2. Where, over objection, the court admits evidence with a statement that the objection will be passed on later in the trial, it is incumbent upon the objecting party, if the evidence be inadmissible, to direct the attention of the court thereto either before or at the close of the testimony, and to move to exclude it, and upon his failure to do so he will be held to have waived his objection. Cawthon v. State, 119 Ga. 395(7), 46 S.E. 897. A like rule obtains where evidence is provisionally admitted on condition that it will later be connected properly by other testimony. Thompson v. State, 166 Ga. 512 (6), 143 S.E. 896, and cit.; Stone v. State, 118 Ga. 705 (9), 45 S.E. 630, 98 Am.St.Rep. 145; Jordan v. State, 150 Ga. 79 (2), 102 S.E. 424. The defendant objected to testimony by a witness, Weaver, that one of the alleged eye-witnesses referred to the homicide in a conversation with the witness at the hospital, where the deceased was taken after the shooting. The testimony was admitted on the statement of the solicitor that it would be connected up later with the defendant; and if not, would be excluded on objection. Later a police officer, Moseley, gave similar testimony, to which the defendant objected, but while mentioning the previous testimony he made no objection thereto or motion to exclude it. The court excluded all of this testimony of the latter witness, except the mere fact that the alleged eyewitness made a "report" to him by giving "an address on Auburn Avenue and a telephone number where he could be reached." On cross-examination the defendant brought out that "the address and telephone number" which were so given "were on Auburn Avenue." Under the rule stated, the exception to the admission of the testimony of the first witness is without merit. The exception to the testimony of the second witness is also without merit, since the defendant himself elicited similar evidence; and in no event does it appear that this apparently harmless later testimony could have been prejudicial.
3. The court did not err in admitting, on the State's cross-examination of a witness for the defendant, testimony that a few hours before and on the night of the homicide, the witness saw the defendant in his room flourishing a pistol, which the witness further described as a "kind of shiny one, kind of nickel-plated like," over the objection that the accused had offered no evidence as to character, and such testimony put in issue his character for violence, where one of the alleged eye-witnesses swore that the pistol which he saw the defendant fire at the deceased was a "shiny one," and the evidence was thus corroborative of the eyewitness testimony attacked by the defendant.
4. Testimony indicating motive for the commission of a homicide is admissible, even though it may show the commission of another offense or relate to the character of the defendant, which he has not put in issue. See Sligh v. State, 171 Ga. 92 (8), 111, 154 S.E. 799; Williams v. State, 152 Ga. 498, 521, 110 S.E. 286; Frank v. State, 141 Ga. 243, 257, 80 S.E. 1016; Cooper v. State, 182 Ga. 42 (3), 184 S.E. 716, 104 A.L.R. 1309. Therefore the court did not err in admitting testimony that the deceased, two or three years before the homicide, had ordered the defendant out of the store of the deceased because the defendant was working on customers a game known as the "greasy pig," consisting of three bottle stoppers with a pea supposedly under one of them, and requiring the guessing or catching of the pea, over the objection that this testimony, relating to gambling by the defendant, put his character in issue without evidence or statement from him as to character. Remoteness in point of time, which might have affected the weight of such evidence, "did not wholly destroy its probative value and render it inadmissible." Odum v. State, 183 Ga. 854 (3), 190 S.E. 25, 26; Keener v. State, 18 Ga. 194 (7), 228, 63 Am.Dec. 269; Shaw v. State, 60 Ga. 246 (2); Everett v. State, 62 Ga. 65 (2); Smith v. State, 167 Ga. 271 (3), 145 S.E. 517; 13 R.C.L. 925,§ 227; 2 Wharton's Criminal Evidence (10th ed.), §§ 902, 918.
5. Whether or not the exception that the court erred in failing without request, to charge the jury "on the law of voluntary manslaughter," be sufficient, in view of the additional language in the exception that "the question of voluntary manslaughter" was "in the case" because of the testimony of the two alleged eyewitnesses, as quoted in this ground, neither the failure to charge the law of voluntary manslaughter nor the failure to charge the law of "justifiable homicide under the fears of a reasonably courageous man," to which exception is also taken in the same ground, was erroneous. It appears from the testimony of these witnesses that the defendant had been seated in a parked automobile, rode therein so as to follow the deceased after the deceased had left his own store; that the defendant stepped from his car, and, without any warning, previous threat, or aggressive or provocative act by the deceased, fired at the deceased across the hood of the car, and inflicted the fatal wounds; and that the deceased did not fire back until after the defendant had thus fired his pistol. The mere facts that one of the witnesses said that he did not see the pistol of the deceased, and only saw the fire from it, and that the other witness said that he did not "know where [the deceased] got that gun from," and "I don't know whether he already had it or whether he got it out-I just saw him fire," were not sufficient to put in issue either voluntary manslaughter or justifiable homicide.
6. Where the judge, substantially in the language of the Code §§ 26-1002 to 26-1004, correctly charged that "murder is the unlawful killing of a human being, in the peace of the State by a person of sound memory and discretion, with malice aforethought, either express malice or implied," and correctly defined express and implied malice, this was in effect an instruction that to constitute murder there must be malice, so that, in the absence of a written...
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