Booth v. State

• Decision Date: 15 April 1925
• Docket Number: (No. 4747.)
• Citation: 127 S.E. 733,160 Ga. 271
• Parties: BOOTH. v. STATE.
• Court: Georgia Supreme Court

160 Ga. 271

127 S.E. 733

BOOTH.

v.STATE.

(No. 4747.)

Supreme Court of Georgia.

April 15, 1925.

(Syllabus by the Court.)

Atkinson and Hill, JJ., dissenting.

Error from Superior Court, Fulton County; E. D. Thomas, Judge.

Pearl Booth was convicted of murder, and she brings error. Reversed.

H. A. Allen, of Atlanta, for plaintiff in error.

John A. Boykin, Sol. Gen., of Atlanta, Geo. M. Napier, Atty. Gen., T. R. Gress, Asst. Atty. Gen., and E. A. Stephens and Ralph H. Pharr, both of Atlanta, for the State.

BECK, P. J. Plaintiff in error was indicted for murder; the indictment charging that she killed J. L. Arendale by beating him with a blunt instrument. She was tried and found guilty, and sentenced to be executed. The evidence showed that on the 8th day of November, 1924, J. L. Arendale was found in the office of the Patterson Lumber Company, lying on the floor, with his head badly beaten in by some blunt instrument. He was carried to the hospital, where he died shortly afterwards. A desk and two safes in the office of the Patterson Lumber Company were found to be badly battered with what appeared to be a hammer. The evidence showed that the defendant owned a hammer exactly the size of the one which made the prints upon the safes and desk of the Patterson Lumber Company. She owned a sweater in which was found a watch of the decedent. Other evidence was admitted, showing that the defendant had robbed other persons after beating them on the head with a blunt instrument, rendering them unconscious. The defendant made a motion for a new trial, which was overruled, and she excepted.

The court admitted in evidence, over objection duly made by counsel for the defendant, the following testimony of Mrs. J. F. Rogers, a witness for the state:

"I recognize the defendant, as having seen her on another occasion at my house. It was on November 4, 1924. She come in the front room without knocking. She wanted to see about sewing, she said. She did not ask for anything, only to see about work, she said. She asked for water, and I went back into the kitchen and she met me as I come back in the bedroom. She asked me if I had need for any servant. I handed her the water, and told her I hadn't anybody except a washwoman. She took the water; and after she asked me about her helping, I suppose I turned just a little bit, and she * * * after she had got her drink of water, that is when she hit me. We were in the bedroom then. She hit me right there, right there, and right there [indicating]—three licks, all on the side of my head; and this one right here by my ear. It was on the right side of my head. There was 75 cents in money on the dresser, and she got that."

The objection urged to this evidence was:

"If your honor please, for the purpose of this record, I object to this testimony and move to rule it out—that is, that part of the testimony which has reference to her hitting her on the head and the getting of the money on the dresser—on the ground that it shows a separate and distinct crime and does not in any way illustrate the motive, intention, good or bad faith of this defendant with reference to the particular transaction for which she is on trial, because the testimony is immaterial and irrelevant, highly prejudicial to the defendant's case, and is illegal."

In overruling the objection and admitting the evidence, the court stated:

"I admit the testimony for the purpose of, and restrict its consideration by the jury as illustrating, if it does, the question of motive, intent, and identity."

In the motion for a new trial, exception is taken to the ruling of the court admitting this testimony.

Another witness for the state, Max Lichenstein, was permitted to testify as follows:

"I live at 283 Martin. My place of business is 296 Woodward avenue. I saw the defendant there, in my place of business, on the 31st— Friday—of last month. It was five weeks ago. I opened my place of business about 5:15 in the morning, and a customer came in to market. I was waiting on this customer; he was a neighbor to me; and this woman walked in— this woman sitting right there—she was the one walked in. I got through waiting on this customer, and asked this woman what she wanted. She had her back turned to me. She said, 'I want you.' I asked her again what she wanted, and she said she wanted a bar of soap; and I walked back in the corner and got the soap, and she was back of me; and I had the starch on the shelf, and that fell down, and I stooped down, and when I ducked down to the floor I went right over. I must have had hold of something, and she hit me on this arm, and then I was unconscious. I don't know what happened, but she hit me here over theeye, and Dr. Davis sewed the eye up. I don't know what she got from me. I was lying on the floor unconscious. After I recovered, I missed $24 out of the display counter, and I had about $4 in my pocket. That is the woman there who did it."

This was objected to. by counsel for plaintiff in error, upon substantially the same grounds as those urged to the testimony of the first witness quoted; and the judge made a similar ruling upon the objection.

O. D. Davis, a witness for the state, was permitted to testify as follows:

"The defendant told me that her and Watson Creed went down there to Mr. Lichenstein's on Friday morning—I forget the date, and sat down on some steps on Woodward avenue, there right at his store, until 5:30. He came down to open the store, and she said she got something. She never did come right out and say she knocked him in the head. She said she got his money, $28. It was on the 4th, of October, is the best of my recollection. I would not be positive about that date. She did not mention any date."

This was objected to upon the same ground as urged to the testimony of Mrs. Rogers and Lichenstein; and the court made the same ruling in regard to this evidence.

We are of the opinion that the court erred in admitting the testimony quoted over the objections urged. The admission of this testimony was contrary to a well-settled doctrine in criminal cases and numerous rulings of this court announcing that doctrine. In Frank v. State, 141 Ga. 243, 80 S. E. 1016, where it was held that the evidence objected to in that case was admissible, it was said:

"As a general rule, evidence of the commission of one crime is not admissible upon a trial for another, where the sole purpose is to show that the defendant has been guilty of other crimes."

In the case of Cawthon v. State, 119 Ga. 395, 46 S. E. 897, it was said:

"When one is on trial charged with the commission of a crime, proof of a distinct and independent offense is never admissible, unless there is some logical connection between the two, from which it can be said that proof of the one tends to establish the other. While this rule is general and subject to few exceptions, still there are some exceptions; as when the extraneous crime forms part of the res gestæ; or is one of a system of mutually dependent crimes; or is evidence of guilty knowledge; or may bear upon the question of the identity of the accused, or articles connected with the offense; or is evidence of prior attempts by the accused to commit the same crime upon the victim of the offense for which he stands charged; or where it tends to prove malice, intent, motive, or the like, if such an element enters into the offense charged."

Mr. Underhill, in his work on Criminal Evidence, states the same general rule, andn

refers to the exceptions to that rule, and, in discussing the exceptions, further says:

"These exceptions ought to be carefully limited and guarded by the courts, and their number should not be increased." Section 151.

And further:

"But no separate and isolated crime can be given in evidence under this exception to the rule. In order that a collateral crime may be relevant as evidence, it must be connected with the crime under investigation as part of a general and composite transaction." Section 152.

In 1 Wigmore on Evidence we find the following:

"This principle has long been accepted in our law. That 'the doing of one act is in itself no evidence that the same or a like act was again done by the same person' has been so often judicially repeated that it is a commonplace." Section 192.

And again he says, as to reasons for the rule:

"It may almost be said that it is because of this indubitable relevancy of such evidence that it is excluded. It is objectionable, not because it has no appreciable probative value, but because it has too much. The natural and inevitable tendency of the tribunal—whether judge or jury—is to give excessive weight to the vicious record of crime thus exhibited, and either to allow it to bear too strongly on the present charge, or to take the proof of it as justifying a condemnation irrespective of guilt of the present charge."

Mr. Wigmore cites and quotes from a very large number of cases laying down the doctrine stated in his text, and it may not be unprofitable to quote from some of those cases here:

"It is a general rule that a distinct crime, unconnected with that laid in the indictment, cannot be given in evidence against a prisoner. * * * Logically, the commission of an independent offense is not proof, in itself, of the commission of another crime." Shaffner v. Com., 72 Pa. 65, 13 Am. Rep. 649.

"That a person has committed one crime has no direct tendency to show that he committed another similar crime which had no connection with the first." Miller v. Curtis, 158 Mass. 127, 129, 32 N. E. 1039, 1040 (35 Am. St. Rep. 469).

"It is an elementary principle that the commission of one crime is not admissible in evidence to establish the guilt of a party of another." People v. McLaughlin, 150 N. Y. 365, 386, 44 N. E. 1017, 1023.

"You know the case lately adjudged in this court: A person was indicted of forgery; we would not let them give evidence of any other forgeries but that for which he was indicted, because we would...