Bowers v. State, 59455
| Decision Date | 13 March 1980 |
| Docket Number | No. 59455,59455 |
| Citation | 153 Ga.App. 894,267 S.E.2d 309 |
| Parties | BOWERS v. The STATE. |
| Court | Georgia Court of Appeals |
John W. Davis, Jr., Rossville, for appellant.
William M. Campbell, Dist. Atty., Christopher Townley, Asst. Dist. Atty., for appellee.
Defendant was indicted, tried, and convicted of the offense of motor vehicle theft. He was sentenced to serve a term of four years and defendant appeals. Held :
1. The first enumeration of error contends the trial court erred in allowing an expert witness to answer, before the jury and over objection, a hypothetical question based on presumed facts not proven at the trial. The issue in the case, stated simply, was whether the defendant, a person of "borderline intelligence, not of normal intelligence," realized at the time that the red Ford truck belonging to another was removed from a parking lot at a garage did not belong to his cousin who was present, and that it was, in fact, being stolen, or whether the defendant was under the mistaken impression that the truck in fact belonged to his cousin. Crucial to the determination of this sole issue are the precise events which occurred before and during the removal of the truck from the parking lot. It is these events which would enable a jury to determine whether the defendant, a person of "borderline intelligence, not of normal intelligence," was involved in the activity other than as a bystander, and that the events leading up to the stealing of the truck would apprise the defendant that the truck did not in fact belong to his cousin.
Several hypothetical questions were asked of the expert who was testifying as to the intelligence tests give the defendant and as to his observations of the defendant. Initially the assistant district attorney framed a hypothetical question to the expert that if the defendant "was around a truck and it was his impression that the person he was with had a key to that truck and it was his truck, would . . . (the defendant) . . . think it was strange when the seal around the vent window was broken off or torn and someone reached inside and opened it even though they were supposed to have a key?" When an objection was raised to this hypothetical question that there was no testimony offered at the trial "that anybody reached inside or broke a window," the assistant district attorney rephrased his question. Whereupon, the following hypothetical question was asked that if the defendant "goes out there with his car and one of the parties that he is with says I've got a key to this car, this is my car, and then that party starts damaging, tearing the stripping around the vent window, would he (the defendant) have the ability to think that that was a little bit odd?" The expert answered, "I don't know that he would not." Objection was then renewed by defense counsel that "I don't believe there has been any such evidence before the court."
Where reliance is made upon circumstantial evidence alone for proof of one of the essential facts assumed in the framing of a hypothetical question, the trier of fact may consider the answer to the question only if it has first determined that the assumed fact has been satisfactorily established. See Travelers Ins. Co. v. Hutchens, 106 Ga.App. 631, 127 S.E.2d 712; Ralston Purina Co. v. Hagood, 124 Ga.App. 226, 229, 183 S.E.2d 492. Paraphrasing the hypothetical question that if the defendant goes out there "with his car" or in another vehicle and one of the parties that he is with says I've got a key to this car, "this is my car," and then that party starts damaging, that is, "tearing the stripping around the vent window," would the defendant "have the ability to think that that was a little bit odd?" There was, of course, testimony that the defendant had been around the stolen truck and the defendant's cousin had stated that he had a key to the stolen truck and that it was his truck and there was testimony that the rubber stripping around the vent window had been damaged. Would this testimony be sufficient to infer that the cousin had started "damaging, tearing the stripping around the vent window?" Of course, the defendant had not arrived in his own car and did not witness nor observe anyone damaging or tearing the stripping around the vent window of a car by someone claiming "this is my car." There was testimony that the rubber stripping had been torn away on the truck, but there was simply no testimony whatsoever that the cousin had broken into the truck or that the defendant had observed anyone breaking into the truck, that is, by tearing the rubber vent stripping although it was shown that the cousin had stated that the truck was his own, that he had left the truck at this location earlier because the starter was broken and that the cousin had a key to the truck. There had already been testimony that the defendant was unable to "organize and apply knowledge" and "to comprehend the whole situation" and that he would tend to take at face value whatever his friends told him.
The issue before the jury was whether the defendant knew the truck was being stolen at the time in question and that he possessed the necessary criminal intent at that particular time. When the additional element (not proven) is added that the defendant had observed the cousin damaging the rubber on the vent window, ostensibly to break into the truck, the hypothetical question becomes subject to the objection made that there was no such evidence before the court. See Code § 38-1710, which requires that the opinions of an expert may be given "on the facts as proved by other witnesses," although he may give his own opinion based on facts within his knowledge. While there was evidence that the vent window had been damaged, this evidence was totally insufficient to infer therefrom that the defendant's cousin started "damaging, tearing the stripping around the vent window," nor was this fact within the knowledge of this witness. This assumed fact has not been satisfactorily established, and the trial court erred in allowing the expert witness to answer this hypothetical question to the detriment of the defendant. The circumstantial evidence that the stolen vehicle had been in some manner tampered with by someone since the owner had parked the vehicle and when it was returned to him after it had been stolen simply was insufficient to assume that it had been done by the defendant's cousin who was involved in this theft. See Ellis v. Southern R. Co., 89 Ga.App. 407(1), 411, 79 S.E.2d 541; Ga. Power Co. v. Crutchfield, 125 Ga.App. 488, 489(3), 188 S.E.2d 140; Baldwin v. Walker, 143 Ga.App. 382(1), 238 S.E.2d 695; Bryant v. State, 197 Ga. 641, 642(6), 652, 30 S.E.2d 259; Braswell v. Owen of Ga., 128 Ga.App. 528, 529(2), 197 S.E.2d 541. The trial court erred in allowing the expert witness to answer this hypothetical question.
2. The defense here was based on evidence that the defendant's cousin stated that he owned the truck and that he possessed a key to it; the defendant is of "borderline intelligence, not of normal intelligence" and more susceptible of taking at face value whatever his friends tell him. The issue is whether the defendant realized that the truck was being stolen at that particular time and he was aiding another in stealing it.
Code Ann. § 26-705 (Ga.L.1968, pp. 1249, 1270; 1969, pp. 857, 859) is as follows: "A person shall not be found guilty of a crime if the act or omission to act constituting the crime was induced by a misapprehension of fact, which, if true, would have justified the act or omission." The court instructed the jury that the defendant had entered a plea of not guilty; that a person will not be presumed to act with criminal intention but that intent may be shown in many ways, and the jury must find that it existed from the evidence produced before them although it may be inferred from proven circumstances or by acts and conduct. He further instructed the jury that the mental capacity of the defendant may also be inquired into. He again instructed the jury that the defendant denied he was guilty of the offense charged and his mere presence at the scene of the crime is not alone sufficient to convict, and that if the defendant did not have the mental capacity to distinguish between right and wrong in relation to the act he should not be found guilty of a crime. At no time did the court charge the substance of Code Ann. § 26-705, supra, that if the act constituting the crime was induced by a misapprehension of fact he should not be found guilty of a crime.
There was no written request to charge the exact language of Code Ann. § 26-705, supra, although there was a written request that even where there is direct evidence that the defendant was present at the scene of a crime but no evidence that he participated therein, this is not sufficient to support a verdict of guilty where the circumstances are consistent with his contention that his presence was involuntary and that he was not conscious of the fact that a crime was being committed. But this charge was not given. This charge contains the substance of Code Ann. § 26-705, supra, in that the defendant's contention was that he was present but his presence was involuntary and that he was not conscious of the fact that a crime was being committed. The trial court erred in refusing to give the substance of this charge or in failing to charge the sole defense of the defendant in that his act in being present at the time the vehicle was stolen "was induced by a misapprehension of fact, which, if true, would have justified the act," that is, of being present and not understanding that the vehicle was being stolen. See Greeson v. State, 90 Ga.App. 57, 60, 81 S.E.2d 839; Bridges v. State, 123 Ga.App. 157, 159(1), 179 S.E.2d 685. Compare Treadwell v. State, 129 Ga.App. 573, 574(4), 200 S.E.2d 323 and Nichols v. State, 133 Ga.App. 717, 718(3),...
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