Cobb v. State, 22166

• Citation: 219 Ga. 388,133 S.E.2d 596
• Decision Date: 10 October 1963
• Docket Number: No. 22166,22166
• Parties: Preston COBB, Jr. v. The STATE.
• Court: Georgia Supreme Court

Page 596

133 S.E.2d 596

219 Ga. 388

Preston COBB, Jr. v. The STATE.

No. 22166.

Supreme Court of Georgia.

Oct. 10, 1963.

Rehearing Denied Nov. 7, 1963.

Syllabus by the Court

The judgment of the trial court denying the extraordinary motion for new trial, as amended, is affirmed for the reasons stated in the opinion.

Preston Cobb was convicted, without recommendation, by a jury in Jasper County Superior Court on August 16, 1961, of the murder of Frank Coleman Dumas. His motion for new trial was denied, that judgment was affirmed by this court in Cobb v. State, 218 Ga. 10, 126 S.E.2d 231, and certiorari was denied by the Supreme Court of the United States in Cobb v. Georgia, 371 U.S. 948, 83 S.Ct. 499, 9 L.Ed.2d 497.

Thereafter, on March 19, 1963, the defendant filed an extraordinary motion for new trial on the ground of newly discovered evidence. After a hearing at which evidence was introduced by defendant in support of his motion, and by the State contrary thereto, the trial judge overruled the motion. The defendant excepted to this judgment and to a number of the court's rulings overruling objections to the admission of evidence offered by the State and sustaining the State's objections to the admission of certain of defendant's evidence.

Donald L. Hollowell, Horace T. Ward, Howard Moore, Jr., Atlanta, for plaintiff in error.

Geo. D. Lawrence, Sol. Gen., Eatonton, Eugene Cook, Atty. Gen., G. Hughel Harrison, Asst. Atty. Gen., LeRoy C. Hobbs, Atlanta, for defendant in error.

MOBLEY, Justice.

1. a. The defendant offered as newly discovered evidence an affidavit of one Willie Jackson, dated April 2, 1963, who stated that on September 18, 1962, he was driving a truck which was involved in a collision with an automobile driven by Thomas Coleman Dumas, the son of Frank Coleman Dumas, the deceased; that Dumas was knocked out of his automobile and while he (Dumas) was lying on the ground he (Jackson) heard him say, 'G'd d'm it, G'd d'm it, I killed my Daddy, now I've gone and killed myself'; that at the time he appeared badly injured and in fear of dying. The statement was properly excluded from evidence by the trial judge. This court in Bryant v. State, 197 Ga. 641, 656, 30 S.E.2d 259, 269, held: 'It is a wellsettled principle of law in this State, that statements made by a third party to the effect that he, and not the accused, was the actual perpetrator of the offense, are not admissible in favor of the accused upon his trial. This principle has been applied where it was sought to introduce the confession of a third party one who was not accused of having any connection with the crime. Moughon v. State, 57 Ga. 102(3); Daniel v. State, 65 Ga. 199(1); Lowry v. State, 100 Ga. 574, 28 S.E. 419; Beach v. State, 138 Ga. 265(2), 75 S.E. 139; West v. State, 155 Ga. 482(1), 117 S.E. 380; Johnson v. State, 188 Ga. 662(1), 4 S.E.2d 813. The same principle has been applied to the admission of confessions by one who was jointly indicted with the accused. Lyon v. State, 22 Ga. 399(1); Kelly v. State, 82 Ga. 441(2), 9 S.E. 171; Robison v. State, 114 Ga. 445(2), 40 S.E. 253; Whitaker v. State, 159 Ga. 787(1), 127 S.E. 106; Parks v. State, 24 Ga.App. 243(1), 100 S.E. 724. The same rule has been followed where it was sought to procure a new trial on the ground of newly discovered evidence that another had confessed to the crime. Briscoe v. State, 95 Ga. 496, 20 S.E. 211; Hubbard v. State, 57 Ga.App. 856(2), 197 S.E. 64. And also where there was a motion to continue on account of the absence of a witness who would testify that one jointly indicted with the accused had confessed. Delk v. State, 99 Ga. 667(3), 26 S.E. 752.' The fact that the person who is alleged to have made the statement is since deceased does not render the declaration admissible. Green v. State, 153 Ga. 215(2), 111 S.E. 916. This court in a unanimous opinion in Bryant v. State, 197 Ga. 641, 657, 30 S.E.2d 259, 269, refused to overrule the foregoing ruling stating: 'This court declines so to do [overrule], as we consider this ruling sound, and in accordance with the overwhelming weight of authority on this subject. 20 Am.Jur. p. 428, § 495; 35 A.L.R. 441; 48 A.L.R. 348; 37 L.R.A.,N.S., 345; 16 C.J. 643, § 1278; Ann.Cas.1913E, 722.'

Further, the requirements of Code § 70-205 that 'When a motion for new trial is made on the ground of newly-discovered evidence, it must appear by affidavit of the movant and each of his counsel that they did not know of the existence of such evidence before the trial, and that the same could not have been discovered by the exercise of ordinary diligence,' were not met for there is no such affidavit from the defendant or his trial attorney, Ben Warren.

There is no merit in defendant's contention that the requirement of Code § 70-205 that defendant and each of his counsel must not know of the existence of the evidence before the trial should not apply to him because of fear that harm might result to him and his family. See Harris v. Roan, 119 Ga. 379(4), 46 S.E. 433, where this court said: 'The existence of excitement in the public mind, resulting from the commission of the crime, producing fear in the mind of the accused, so as to deter him from furnishing his counsel with information necessary to prepare his defense, even if in any case a sufficient reason to grant a new trial on extraordinary motion, will not be when the time elapsing between the verdict and the final order on the ordinary motion is such that the apprehensions in the mind of the accused must have abated.' See also O'Neil v. State, 104 Ga. 538(1), 30 S.E. 843; Harper v. State, 131 Ga. 771, 780, 63 S.E. 339, and cases cited. The record shows that 107 days elapsed between the jury's verdict and the judgment overruling defendant's ordinary motion for new trial. Defendant is chargeable with legal diligence, of which it was said in Young v. State, 56 Ga. 403, 404(2), 'A part of the evidence called newly discovered is not so; the prisoner knew of it, and should have informed his counsel. We observe from the record that, though a colored person, and but fifteen years old, he had been to school and could write his name. He had intelligence enough to be chargeable with legal diligence in preparing for his defense.' Preston Cobb was 15 years of age at the time Dumas was killed. He had finished the eighth grade in school and had made passing grades. He wrote a letter on December 5, 1962, which demonstrates that he was able to write with clarity of expression. No valid excuse is offered for the defendant's failure to disclose his alleged knowledge, revealed by his affidavit made after the ordinary motion for new trial was overruled, that Thomas Coleman Dumas killed his father.

b. The statement was not admissible as a dying declaration. 'Declarations by any person in the article of death, who is conscious of his condition, as to the cause of his death and the person who killed him, shall be admissible in evidence in a prosecution for the homicide.' Code § 38-307. Also see Donnelly v. United States, 228 U.S. 243, 33 S.Ct. 449, 57 L.Ed. 820. Likewise, the statement is not admissible as part of the res gestae. See Augusta and Summerville Railroad Co. v. Randall, 79 Ga. 304(3), 4 S.E. 674.

c. For the reasons set out in 1. a. and 1. b., above, the court properly sustained the State's objections 6(a) and (b) of defendant's exhibit M8.

2. The ballistics report on the bullet which killed the deceased, offered as newly discovered evidence, was of no probative value as the result of the examination of the bullet was negative, the report being that because of the condition of the bullet 'no definite conclusion can be made as to the type of fatal bullet in this case.' As between the rifle and a Colt pistol examined, the report was that 'in a choice between the two guns, there is considerable probability that the Colt fired the fatal shot.' The indictment alleged that the weapon used was a certain 'rifle and gun.' On the trial, the State established that a rifle taken from the deceased's station wagon was the weapon used by the defendant. The defendant in his statement stated that he shot Mr. Dumas with a 'pistol.' 'The evidence being conflicting as to the weapon used, the jury could believe the prosecutor in preference to the witness for defendant.' Trowbridge v. State, 74 Ga. 431(4). 'It is not indispensable to prove the precise weapon set forth in the indictment. It is sufficient if both were weapons likely to produce death, and were capable of inflicting the same character of injury.' Trowbridge v. State, 74 Ga. 431(4)(a). To the same effect, see Brawner v. State, 81 Ga.App. 163, 166, 58 S.E.2d 238, and citations. A pistol is a gun. Hill v. State, 147 Ga. 650(1), 95 S.E. 213; see also, Norwood v. State, 28 Ga.App. 238(1), 111 S.E. 59; Muse v. Interstate Life & Accident Co., 45 Ga.App. 839, 840, 166 S.E. 219.

3. a. We have carefully examined the exceptions to the order of the trial...