Callahan v. State
| Decision Date | 12 May 1952 |
| Docket Number | No. 17831,17831 |
| Citation | 209 Ga. 211,71 S.E.2d 86 |
| Parties | CALLAHAN v. STATE. |
| Court | Georgia Supreme Court |
T. C. Callahan, along with three others, was indicted by a grand jury of Fulton County for the murder of Harold M. Kimble. On a separate trial Callahan was found guilty without a recommendation of mercy, and was sentenced to death by electrocution. His motion for a new trial as amended was overruled, and the case is before this court on a bill of exceptions complaining of this order.
On the trial, the court charged the jury as follows: 'I charge you that, where two or more parties conspire to rob another who is in a building, and where one or more of the conspirators remain at a convenient distance and keeps watch or guard while two of said conspirators enter said building for the purpose of committing said robbery, and in furtherance of said common design to rob, one of said conspirators kills the person intended to be robbed, such act of killing is the act of each said conspirator, including the one on the outside of said building, and each of said conspirators is as truly responsible for said killing as if he had done the killing himself, and where the killing is a probable consequence of the unlawful design to rob.' Special ground 6 complains that this charge was erroneous, in that it was not applicable to the facts of the case; and further, that it was confusing and misleading, in that the court expressed an opinion as to what had been proven.
Special ground 7 complains that the court erred in charging the jury, in substance, that, if they believed beyond a reasonable doubt that the defendant, in conspiracy with one or more of the codefendants to rob the person named in the indictment, and in furtherance of said conspiracy the defendant remained outside of the store, and one of the conspirators, while in the store for the purpose of committing a robbery, shot and killed the deceased, the killing was a probable consequence of the attempt to rob, and such killing was without justification but was intentional and with malice aforethought; and, if the jury believed that beyond a reasonable doubt, they would be authorized to convict the defendant of murder. The complaint is that such charge was erroneous and injurious, in that the court did not state the contentions of the defendant as to the conditions under which he remained outside, whether on watch or guard, or whether he was 'unconscious or drunk,' and further, that the court drew legal conclusions from assumed facts without instructing the jury to look to portions of the testimony which, when analyzed, might have induced a rational doubt as to the guilt of the defendant.
Special ground 8 asserted that a new trial should be granted on the ground of newly discovered evidence. The newly discovered evidence was a copy of the transcript of the testimony of Bennie Lee Timbs on the trial of the State v. Clarence L. Day, wherein said Timbs testified as a witness for the defendant Day on that trial on January 18, 1952. This ground contains the affidavits of the defendant and his counsel, and that of the court reporter, as to the correctness of the transcript. It does not appear in this ground that there were any affidavits of other witnesses as to the residence, associates, means of knowledge, character, and credibility of Bennie Lee Timbs.
Kermit C. Bradford, Atlanta, for plaintiff in error.
Paul Webb, Sol. Gen., Charlie O. Murphy, Asst. Sol. Gen., Carl B. Copeland, Asst. Sol. Gen., Frank B. French, Atlanta, Eugene Cook, Atty. Gen., Hugh C. Carney, Asst. Atty. Gen., for defendant in error.
Syllabus Opinion by the Court.
1. The court did not err in refusing to declare a mistrial, as complained of in special ground 1 of the motion for a new trial, because a witness for the State on direct examination stated that the defendant on trial and another person had been imprisoned, which answer was not in response to any question, where the statement was promptly excluded and the jury were instructed to disregard it. Worthy v. State, 184 Ga. 402(3), 191 S.E. 457; Stanford v. State, 201 Ga. 173(2), 38 S.E.2d 823; Brown v. State, 203 Ga. 218(3), 46 S.E.2d 160.
2. It is not error to refuse to permit a non-expert witness to answer a hypothetical question on cross-examination, where the opinion or conclusion called for is dependent upon facts which he has not testified to. Moon v. State, 68 Ga. 687(4); Alabama Great Southern Railroad Co. v. Brown, 140 Ga. 792(3), 79 S.E. 1113, Ann.Cas.1915A, 1159; Cooper v. State, 197 Ga. 611(5), 30 S.E.2d 177. Special ground 2, which complains that the court erred in not permitting a State's witness, on cross-examination, to answer a hypothetical question...
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Waters v. State
...argues a lay witness may not answer a hypothetical question incorporating facts not testified to by the witness. See, Callahan v. State, 209 Ga. 211(2), 71 S.E.2d 86 (1952). We cannot agree that the question was improper because it incorporated facts not testified to by the witness. However......
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