Bobo v. State
| Decision Date | 25 May 1962 |
| Docket Number | No. 39463,No. 2,39463,2 |
| Citation | 126 S.E.2d 286,106 Ga.App. 111 |
| Parties | Lester BOBO v. The STATE |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. Harrison v. Hester, 160 Ga. 865(3), 129 S.E. 528.
2. Where, during the course of a trial, a party had an opportunity to but did not raise the question that he was being denied the benefit of the application of an unambiguous constitutional right, he cannot raise such question for the first time in a motion for a new trial.
The defendant was tried for murder and convicted of voluntary manslaughter. His motion for a new trial containing the usual general grounds and two special grounds was overruled. From this ruling he appealed. Counsel for the defendant has expressly abandoned the general grounds.
Cook & Palmour, Bobby Lee Cook, Summerville, for plaintiff in error.
Chastine Parker, Sol. Gen., Rome, for defendant in error.
1. Margaret Ware, a witness for the State, testified in substance that the defendant, who was carrying a gun, and another person came to the room of Sol Ricks, which was in the same house where she maintained her living quarters; that an altercation ensued between the defendant and Sol Ricks concerning some whisky; that she went out into the yard, and after a while her nephew (the deceased) arrived by taxi; that he walked into the yard and exchanged greetings with her, and after she and her nephew had a short conversation, they walked up to the steps leading to the porch of the house; that the defendant, his companion and Sol Ricks were standing on the porch; and that as they started up the steps the defendant 'threw up' his gun and shot the deceased, thereby killing him.
During the course of her testimony she said that when the deceased came into the said that when the deceased came into the And she testified: '* * * and I told him, and he stood there and then he looked up. He had his hat sitting half way on his head, and he said, 'What's the excitement?', but he didn't say it that loud. I said, 'Bobo is up here on Sol Ricks about his whisky.' He said, 'Do you know anything about it?', and I said, 'No, I don't know nothing about them men going around here stealing whisky at night.''
Counsel for the defendant objected to the above quoted testimony concerning the conversation she had with her nephew, the deceased, upon the ground that such testimony was hearsay. The court overruled the objection, and in special ground 1 of the defendant's motion for a new trial, he assigns this ruling as error.
While we are of the opinion that the witness' account of what the deceased said to her was hearsay (assuming, but not deciding, that the conversation would not come within any of the exceptions to the hearsay rule (see Ponder v. State, 87 Ga. 262, 13 S.E. 464), the fact that the testimony contains hearsay does not, ipso facto, require a reversal of the case. Harrison v. Hester, 160 Ga. 865(3), 129 S.E. 528, supra. See Holcombe v. Jones, 197 Ga. 825(3), 30 S.E.2d 903. It is readily apparent that the quantum of hearsay in the above testimony amounted only to questions the deceased asked the witness, and such questions were not statements of fact relevant to the issue being tried. We cannot see how the defendant could have been prejudiced or harmed. See Maddox v. City of Dublin, 18 Ga.App. 614, 89 S.E. 1090; Garnett v. State, 10 Ga.App. 109, 72 S.E. 951. The other portion of the witness' testimony was her own direct evidence and not hearsay.
The witness had previously testified that when the defendant en...
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Willis v. State
...on the constitutional grounds that he now urges (shepherd v. City of Jackson, 18 Ga.App. 216(2), 89 S.E. 161; Bobo v. State, 106 Ga.App. 111, 113, 126 S.E.2d 286; Crider v. State, 114 Ga.App. 522(2), 151 S.E.2d 791; Lundy v. State, 119 Ga.App. 585, 587, 168 S.E.2d 199; Lewis v. State, 196 G......
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Norwood v. State
...As appellant has not demonstrated prejudicial error, this enumeration does not warrant the grant of a new trial. See Bobo v. State, 106 Ga.App. 111, 126 S.E.2d 286. 4. Appellant argues that the evidence was insufficient to support the verdict in that there was no proof of criminal intent. W......
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Little v. State, s. 45024
...grounds now being urged, this ground is without merit. Shepherd v. City of Jackson, 18 Ga.App. 216, 89 S.E. 161; Bobo v. State, 106 Ga.App. 111, 113, 126 S.E.2d 286; Calhoun v. State, 211 Ga. 112, 113, 84 S.E.2d 198. Furthermore, the ground is not meritorious for two additional reasons. 1) ......
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Harris v. State, 51875
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