Bland v. State

• Decision Date: 14 October 1953
• Docket Number: No. 18282,18282
• Citation: 210 Ga. 100,78 S.E.2d 51
• Parties: BLAND v. STATE.
• Court: Georgia Supreme Court

Page 51

78 S.E.2d 51

210 Ga. 100

BLAND v. STATE.

No. 18282.

Supreme Court of Georgia.

Oct. 14, 1953.

Syllabus by the Court.

1-6. No error is shown in the rulings of the court complained of in grounds 1 through 11 of the amended motion for new trial.

7. It is improper for the State's counsel to discuss the general character of the accused when such character has not been put in issue.

8. It was erroneous to instruct the jury on a principle of law which was not authorized by the evidence or the defendant's statement.

9. No error is shown in ground 14 of the amended motion for new trial.

10. Since a new trial must be granted, no ruling is made on the general grounds.

Wilson Horace Bland was indicated for the murder of his sister, Mrs. Gaston H. Lennon, and was convicted without a recommendation of mercy.

The evidence showed that the deceased was shot through the door of her home, and died within a few hours. The defendant was estranged from his wife, and his young son, thirteen years of age, was staying with the deceased at the time of the homicide. The boy testified that he was in the front bedroom when he heard a car stop in front of the home of the deceased, and by lifting the venetian blinds, he saw his father coming up the walkway of the home, that he warned his aunt that his father was coming, that she went to the door and asked, 'Who is it,' whereupon the shots were fired which killed his aunt. There was testimony by two neighbors that the boy went immediately to their home (the next house) and reported that his father had killed his aunt, and asked that they call an ambulance and the police. The State introduced some circumstantial evidence tending to connect the defendant with the homicide. The defendant introduced testimony of contradictory statements by the boy, who was the chief witness for the State, in regard to his ability to identify his aunt's assailant (the homicide occurring after dark). The defendant attempted to show that he could not have been at the scene of the homicide at the time of its occurrence. In his statement he denied any connection with the homicide.

Sullivan & Maner, Savannah, for plaintiff in error.

Andrew J. Ryan, Solicitor-Gen., Sylvan A. Garfunkel, Jr., Thomas M. Johnson, Jr., Asst. Solicitors-Gen., Savannah, Eugene Cook, Atty. Gen., Rubye G. Jackson, Atlanta, for defendant in error.

HEAD, Justice.

1. In grounds 1 and 2 of the amended motion for new trial, error is assigned on the court's failure to disqualify two of the jurors comprising the panel drawn to try the defendant. After these jurors had qualified under the general voir dire questions, counsel for the defendant further examined them, as authorized by the act approved February 19, 1951, Ga.L.1951, pp. 214-216, Code Ann.Supp. § 59-705. Error is assigned in each ground because the court failed to disqualify the juror and forced the defendant to exhaust a strike, after such juror had expressed an opinion that was against the defendant.

It is unnecessary to decide whether or not the trial court erred in ruling that these jurors were competent to serve in the trial of the defendant, since the grounds do not show that, by using two of his peremptory challenges in removing these jurors, the defendant exhausted all of his peremptory challenges prior to the selection of a jury. These grounds, therefore, do not show that the defendant was injured, or that there was an advantage to the State, and the ruling, if erroneous, would not require the grant of a new trial. Ethridge v. State 163 Ga. 186(1-b), 136 S.E. 72; Faulkner v. State, 166 Ga. 645(6), 646, 144 S.E. 193; Robinson v. Murray, 198 Ga. 690, 32 S.E.2d 496.

2. In ground 3 it is asserted that the court erred in admitting in evidence certain testimony of the witness Mrs. Frances Hardy, over the objections that the testimony was immaterial and irrelevant, endeavored to show that the defendant was not accustomed to apying his debts, and was derogatory to his character. The testimony objected to was as follows: 'He [the defendant] asked for five bottles of beer and I put them in a bag and he picked them up and started out and told me to put them on a slip, I didn't ask him about paying for them; I just let him go ahead with them; I didn't argue the point at all.' This testimony was in reply to the solicitor's question as to whether or not it was all right for her to charge the beer to the defendant.

The fact that the witness was willing to allow the defendant to charge the purchase that he made could not be said to show that he was not accustomed to paying his obligations, nor was it derogatory to his character. Since this evidence was not prejudicial to the defendant, its admission would not require the grant of a new trial.

3. In ground 4 it is asserted that the court improperly admitted in evidence the testimony of the witness Ralph Edward Bland, in which he described how he could identify a Plymouth automobile. This ground is incomplete, in that it does not show that any objection was made to the testimony at the time it was offered.

4. In ground 5 it is contended that the following evidence was illegally admitted by the court: The solicitor asked the witness for the State, Ralph Edward Bland, the following question: 'You remember when you came into the office, my office, he was sitting there in a chair; you remember LaDonne and his brother Horace [brothers of the witness], coming in there and threatening you, and I had to get up and walk over to them and tell them to get out of my office?' The witness replied, 'Yes, sir.' The solicitor then asked: 'Is that correct?' The defendant objected to this testimony on the ground that it was not shown in what manner the witness was being threatened.

If the defendant desired to know how the witness was threatened, this was a proper matter to discover on cross-examination, and no error is shown in the admission of this evidence over the objection made.

5. In ground 6 it is stated that the solicitor propounded a question to Captain Leonard Hallman, a witness for the State, as follows: 'In your opinion, from the condition of the lighting around there, from the distance of the end of the curbing on the north side of 40th Street to the window where the little boy was sleeping, rather the room where he was sleeping, in your opinion, based upon all of those facts from what you saw there, could it have been possible for somebody inside that room, looking through one of the venetian blinds, which life up and down, could they have seen somebody get out of the automobile?' The defendant objected to allowing the witness to reply to this question on the ground that it called for a conclusion on the part of the witness. The objection was overruled, and the witness replied: 'After the young lad told me what he had to say about having lifted up the blind, while he was dressing, I walked into the bedroom, the corner of the bedroom window had been lifted up; I don't know which blind because he didn't say; but I lifted up one and could identify seven or eight people who were on the sidewalk and two or three automobiles which were across the street by lifting up one blind only.'

'An answer which does not state a conclusion should not be ruled out on the ground that the question, to which such answer was a reply, sought to elicit a mere conclusion.' Robinson v. State, 158 Ga. 47, 122 S.E. 886.

The officer expressed no opinion as to the ability of the boy, Ralph Edward Bland to identify a person from the window of the room occupied by him. The question of whether or not the person committing the homicide could be identified by the boy under the conditions which existed at that time, was pertinent to the issue. A state of facts was set forth in the testimony of the officer, and he stated what he saw under the physical circumstances related by him. Whether or not the testimony of the son of the defendant showed that his opportunity to see was equal to that of the officer, was a question for the jury. The officer in his response to the question did not state a conclusion.

6. Ground 7 complains of the admission in evidence of the testimony of the witness Captain Leonard Hallman that he asked the deceased if she knew where she was, and she nodded her head very slightly in the affirmative. The objection to the evidence was that it was a conclusion on the part of the witness. It is not shown that this fragment of evidence was harmful to the defendant, and it was not erroneous to overrule this ground.

In grounds 8 and 10 (there being no ground 9) objection is made to the admission in evidence of alleged dying declarations of the deceased. In ground 8 it is shown that Captain Leonard Hallman was questioned by the solicitor as follows: 'What did you ask her, Captain, and how did you ask her?' The witness replied: 'I asked Mrs. Lennon if she knew where she was; she nodded her head in the affirmative; I asked her could she tell me; she shook her head in the negative; I asked her then was it her brother.' Counsel for the defendant objected to the testimony on the grounds that, to authorize the admission of a dying declaration, the deceased must make the statement, and that the witness had suggested the name of her brother to the deceased, which was calling for a conclusion from her. This ground does not show what testimony of the witness was allowed after the objection was overruled. In ground 10 it is contended that the following testimony of the witness, B. J. Bennett, was illegally admitted in evidence: 'Yes, sir, somebody in the house, I don't know who it was said she [the deceased] had been shot; I asked her who had shot her; she said her brother; I asked her who her brother was and she said Horace Bland.' The grounds of objection to the admission of this testimony were that it was an expression of opinion, and that the grounds were not laid to show that the deceased knew she was in the article of death.

Where the victim...