Carroll v. State, 32033.

• Decision Date: 01 June 1948
• Docket Number: No. 32033.,32033.
• Citation: 48 S.E.2d 491
• Parties: CARROLL. v. STATE.
• Court: Georgia Court of Appeals

48 S.E.2d 491

CARROLL.

v.STATE.

No. 32033.

Court of Appeals of Georgia, Division No. 2.

June 1, 1948.

Syllabus by the Court.

While evidence is admissible in a criminal case when offered by the State to contradict the statement of the defendant, when it is admissible on that theory only and fails to amount to a contradiction of any part of the defendant's statement, and is prejudicial to the defendant, its admission constitutes reversible error.

Error from Superior Court, Fulton County; Wm. W. Mundy, presiding Judge.

Rufus Carroll was convicted of voluntary manslaughter, and he brings error. Reversed.

Plaintiff in error, Rufus Carroll, hereinafter referred to as the defendant, was tried for murder in the Superior Court of Fulton County. The defendant shot and killed James Acey with a pistol as an outgrowth of an argument over change of a dollar in the home of the deceased, which was in the same block and very near to the home of the defendant. There were no eye witnesses to the shooting but a witness who lived next door heard the argument and the shots.

He put his general character in issue by introducing witnesses in support thereof.

He made a statement in his own behalf in which he included the following: "I have lived in Georgia all my days and I have never been in no trouble, nor doing anything of that type in my life. I have always tried to treat people like I want them to treat me. I never tried to fight any one. I have always tried to avoid it all my days. I have never been in anything like that in my life."

The jury convicted the defendant of voluntary manslaughter and fixed his punishment at not less than 15 years or more than 20 years in the penitentiary.

The defendant filed a motion for a new trial on the general grounds which was later amended by adding two special grounds. The trial judge overruled the motion for a new trial as amended and this judgment is assigned as error.

Geo. T. Manley and Reuben A. Garland, both of Atlanta, for plaintiff in error.

Paul Webb, Sol. Gen., Wm. Hall and James W. Dorsey, all of Atlanta, for defendant in error.

TOWNSEND, Judge (after stating the foregoing facts).

Grounds 1 and 2 of the amended motion for a new trial contended that the trial court erred in allowing the State to introduce over timely and proper objections an indictment charging the defendant with lottery in two counts returned by the Grand Jury of Fulton County on December 19, 1933, and on which the defendant was convicted, and an accusation preferred in the criminal court of Fulton County at the January Term, 1939, charging that the defendant, with the offense of gaming with cards on which accusation the defendant pleaded guilty. Counsel for the State contends in their brief that this evidence was admissible for the purpose of contradicting the statement of the defendant. It is well settled that this evidence as to specific acts is not admissible for the purpose of showing general bad character as rebutting the evidence of the defendant as to general good character (see Giles v. State, 71 Ga. App. 736, 32 S.E.2d 111), and if the evidence is admissible on any theory at all, the same must be for the purpose of con tradicting the statement of the defendant. If it does contradict the statement of the defendant it is admissible. See Woodward v. State, 197 Ga. 60 at page 68, 28 S.E. 2d 480; Lee v. State, 197 Ga. 123(4), 28 S.E.2d 465; Sisk v. State, 182 Ga. 448(3), 185 S.E. 777; Johnson v. State, 186 Ga. 324(4), 197 S.E. 786; Fluker v. State, 184 Ga. 809(4), 193 S.E. 749; Worthy v. State, 184 Ga. 402(2), 191 S.E. 457; Morris v. State, 177 Ga. 106, at page 115, 169 S.E. 495. If it does not contradict the defendant's statement it is not admissible. See Giles v. State, supra.

It is therefore essential that the part of the defendant's statement contended by the State to have been contradicted, be carefully analyzed. Stripped down, that part of the statement is as follows: "* * * 1 have never been in no trouble. * * * " All of the defendant's statement relating to this subject however, is set forth in the statement of facts herein and reference thereto discloses that all the trouble he was talking about related to trouble between individuals. He continues with "I have always tried to treat people like I want them to treat me." This statement can only relate to conduct between...