Dye v. State, 22480

• Decision Date: 01 June 1964
• Docket Number: No. 22480,22480
• Citation: Dye v. State, 220 Ga. 113, 137 S.E.2d 465 (Ga. 1964)
• Parties: Bernard DYE v. The STATE.
• Court: Georgia Supreme Court

Page 465

137 S.E.2d 465

220 Ga. 113

Bernard DYE v. The STATE.

No. 22480.

Supreme Court of Georgia.

June 1, 1964.

Rehearing Denied June 22, 1964.

Syllabus by the Court

1. The general grounds of the motion for new trial, having been abandoned, will not be considered.

2. It was not error to permit the deceased's widow to remain in the courtroom and to testify.

3. The instructions as to voluntary drunkenness were authorized.

4. The charges as to justifiable homicide did not place upon the defendant the burden of establishing his innocence beyond a reasonable doubt.

5. The trial court properly admitted testimony of a witness that he overheard the defendant make certain remarks some time after the homicide.

6. The admission of testimony as to the defendant's incarceration in a particular cell and the reason therefor was not erroneous.

7. The trial court properly denied the defendant's motion for mistrial.

8. It was proper to admit in evidence the defendant's statements made in his two former trials.

Robert E. Knox, Warren D. Evans, Thomson, for plaintiff in error.

Kenneth E. Goolsby, Sol. Gen., Randall Evans, Jr., Thomson, Eugene Cook, Atty. Gen., Rubye G. Jackson, Asst. Atty. Gen., Atlanta, for defendant in error.

GRICE, Justice.

Bernard Dye was indicted by the grand jury of McDuffie County for the murder of Otis Rabun by shooting him with a rifle. A superior court jury in that county has three times found him guilty without a recommendation of mercy. Following the first trial, that court granted his motion for a new trial. After the second trial, it denied such a motion, but this court reversed because of an erroneous charge on mutual combat. Dye v. State, 218 Ga. 330, 127 S.E.2d 674. Following the third trial his motion consisting of the general and eight special grounds, was denied. That ruling occasions this review.

1. Insofar as the three general grounds of the amended motion are concerned, there was some conflict in the evidence. These grounds were not insisted upon in the brief of plaintiff in error and were expressly abandoned in his oral argument. Hence they will not be considered here.

2. In ground 4 complaint is made of the court permitting the deceased's widow, a State's witness, to remain in the courtroom during the trial and the examination of other witnesses after the rule had been invoked and witnesses sequestered by the court, and also in allowing her to testify. It is urged that she was not the prosecutor or any law enforcement officer or other official who had investigated the facts surrounding the homicide so as to except her from the rule; that the State had made no showing as to how she was needed in the conduct and prosecution of the case; and that she remained in the courtroom and heard four other State's witnesses testify before she testified, instead of being called as the first State's witness.

This ground, as we evaluate it, is not meritorious.

In construing Code § 38-1703, which is the basis for 'the rule' of sequestering witnesses, this court has held that 'While [Code § 38-1703] seems to confer upon either party the right to have the witnesses of the other examined out of the hearing of each other, and directs that the court shall take proper care to effect this object as far as practicable and convenient, yet this court has ruled that this matter is within the discretion of the trial judge, and has refused to reverse a ruling permitting one or more of the witnesses for the respective parties to remain to assist counsel in the trial of the case.' Shaw v. State, 102 Ga. 660, 667, 29 S.E. 477, 479. See also, Thomas v. State, 27 Ga. 287.

In the instant case the State's counsel stated in his place that this witness was needed in the trial. The evidence shows that she was present from the inception to the end of the fatal altercation, that the shooting occurred in her home, and that she, the victim's wife, was the central figure in it. Thus, she was extremely familiar with the facts of the case and was in position to assist in the prosecution. We see no abuse of discretion in allowing her, upon the request made, to remain in court.

Nor was it error to permit her to tesify under these circumstances. The fact that she remained in the courtroom while others testified did not disqualify her as a witness. Code § 38-1703, supra; McWhorter v. State, 118 Ga. 55(6), 44 S.E. 873; Phillips v. State, 121 Ga. 358(3), 49 S.E. 290.

3. Ground 5 urges that the court erred in charging the jury, without request, as to voluntary drunkenness not being a defense to crime, because such principle was not authorized by or adapted to the evidence, there being no testimony that the defendant was 'drunk.' The defendant's position is that he relied upon self-defense, not drunkenness, and that the charge on drunkenness was confusing, assumed that a crime had been committed and prejudicially injected an issue not made by the evidence.

In our view, it was not error to charge upon this principle.

The evidence amply authorized such charge. The deputy sheriff testified that on the occasion under investigation the accused 'was under the influence of intoxicating liquors' and gave his reasons therefor. The sheriff swore that he 'was under the influence of intoxicants.' The deceased's widow said that he 'staggered.' As to the sufficiency of this evidence to authorize a charge on drunkenness, compare Adkins v. State, 198 Ga. 720(2), 32 S.E.2d 768.

4. It is contended in grounds 6 and 7 that two portions of the charge relating to justifiable homicide had the effect of instructing the jury that in order for them to acquit the accused, he would have to prove his innocence beyond a reasonable doubt. Specifically, one ground is directed to the following language: 'If you have a reasonable doubt as to his guilt, it is your duty to give him the benefit of that doubt and acquit him.' The other complaint is leveled at these words: 'If you should have a reasonable doubt as to the defendant's guilt of the offense of murder, you could not convict him of that offense at all, but it would be your duty to acquit him so far as the charge of murder is concerned.'

As to both of those, it is contended that in charging 'If you [should] have a reasonable doubt as to his guilt * * *' the court placed upon the defendant the burden of establishing his innocence beyond a reasonable doubt, rather than placing the burden upon the state to establish his guilt beyond a reasonable doubt.

We do not regard either of these portions of the charge as subject to this criticism. In each instance, the sentence just preceding the language complained of charges that 'If you believe beyond a reasonable doubt that * * * [the defendant killed without justification] then, in that event, gentlemen, you would be authorized to find the defendant guilty of' murder. The language complained of, instead of placing any burden of proof on the defendant, emphasizes to the jury that in order to find him guilty they must have no reasonable doubt but what he is guilty.

5. Ground 8 asserts that it was error to admit into evidence testimony of a witness that he overheard the defendant say 'if he had it to go over with again he would shoot the whole damn works up,' since such statement was made while the defendant was in jail some considerable time after the homicide. The evidence does not show when the statement was made, except that it was not on the night of the homicide. The trial court admitted this testimony 'as a circumstance for the jury, along with the other evidence in the case to decide about the state of the person's mind, his feelings, or any motive of premeditation he might have had at the time,' and so instructed the jury.

We deem this evidence admissible for the jury to consider, with the other evidence, on the issue of whether the defendant slew the...