Fluker v. State
| Decision Date | 10 November 1937 |
| Docket Number | 11951. |
| Parties | FLUKER v. STATE. |
| Court | Georgia Supreme Court |
Error from Superior Court, Fulton County; James C. Davis, Judge.
O. V Fluker was convicted, without a recommendation, of murder by shooting with a pistol, and he brings error.
Affirmed.
In murder prosecution, where evidence of subsequent robberies committed by defendant was admitted without objection, a subsequent mere objection thereto was not equivalent to motion to strike out testimony.
Statement of facts by Jenkins, Justice:
O. V Fluker was found guilty, without a recommendation, of the murder of Edward L. Guyol by shooting him with a pistol. The wife of the deceased testified that she and her husband had just seated themselves in an automobile in the driveway of their residence in Atlanta, at about 7:30 at night on April 23, 1935, when a man walked up to the side of the car on which she was sitting, 'bent over and looked in at [her] husband, then he straightened up again, and [she] saw a big dark-looking gun,' which in her opinion was 'an automatic pistol,' 'come in front of him right quick,' that when she saw the pistol she fell over on her husband, and tried to get the rings off her fingers; that as she 'fell there and was trying to get [her] jewelry off he made a remark, he says, 'Ed, you have got it coming to you,'' and 'the shot was fired right after that was said'; that the man then disappeared; that her husband had $2,233 in money in his right-hand coat pocket and also some jewelry, and after the homicide she found this money 'on the floorboard over the car that [she and her husband] were seated in.' She further swore that a strong 100-watt electric light was turned on at the bottom of the steps where the car was parked and other lights on almost all over the house; that she saw the man who fired the shot face to face, when he looked in the car; that the defendant, sitting in court, was the man; and that after the homicide she first saw him in a line-up at the police station in Atlanta. A physician described the fatal bullet as having entered the right side of the face and emerged at the left side of the neck. A police officer testified that in searching the automobile on the night of the homicide he found an empty .45-caliber shell at the right side of the front seat, and a bullet that had been fired; and that all automatic pistols discharge their empty shells to the right. B. D. Hagan described a second-hand .45-caliber Colt automatic pistol, which he and a clerk of a pawnbroker shop in Birmingham, Ala., testified went into Hagan's possession in Birmingham about the first of March, 1935. Hagan swore that he had intimately known and associated with the defendant and Tom Hamrick, both of whom frequently in the presence of the witness had pistols in their possession; that in Birmingham, on April 17, 1935, in the presence of Alex. Collins, he loaned the .45-Colt automatic to the defendant with the understanding that the defendant was to pawn it to obtain needed money; that he did not see the defendant until two months or a little more afterwards, and had not seen the pistol since or been informed where it went; that, after he bought the pistol and before he loaned it to the defendant, the witness had fired several shots from it into a pine tree, in target practice about eight miles from Birmingham.
Alex. Collins testified that Hagan lent this pistol to the defendant on the occasion testified by Hagan; that he last saw the weapon when the defendant placed it in a grip; and that the witness was with Hagan when Hagan fired the bullets into the tree near Birmingham, as Hagan testified. There was testimony that the part of the tree into which these bullets were fired was cut and removed; that one of the bullets was carefully extracted from the wood; that this bullet and the bullet found in the automobile of the deceased were placed in the hands of a firearms expert of Fulton county, Ga., and later in the hands of a special agent of the United States Department of Justice in Washington, D. C., who was assigned as a ballistic expert in the technical laboratory of the bureau, and was an instructor of training classes, known as G-men, in firearms identification. This expert testified as to his long ballistic experience and his microscopic examination of the two bullets, and the accuracy of the methods used by him to identify bullets as to the particular weapons from which they were fired. From the data thus obtained and stated, he testified that 'it is my opinion, from my experience and from the tests I made, that these two bullets were fired from one and the same pistol.' The Fulton county firearms expert also testified that 'there is no doubt whatever in my mind but that these two bullets were fired from the same gun.' George H. Rice, a driver of a bus from Birmingham to Atlanta and return, testified that he saw the defendant, whom he had known about sixteen or eighteen years, at about 11 or 11:30 in the morning on a street corner in Atlanta. Upon reference to the hours of his bus schedules, he stated that, while 'it could have been possible that it was the 18th of April [1935] that I saw him there,' and while the witness would not swear that the 23d was the exact date, he said, 'I don't think it was the 18th, from the way my schedules figure; and counting back to the days, it must have been about the 23d--it couldn't have been a day earlier or later, because I would have been coming out of Birmingham at a different time of day.'
In his statement to the jury the defendant denied any connection with the homicide, and denied his presence in Atlanta on April 23, when the homicide occurred. He said that he came to Atlanta on April 17, saw Rice, the bus driver, on the 18th, and then returned to his home at Sylacauga, Ala., where he remained with his wife for a couple of days; that he then went to Birmingham, was there on the night of April 22 and on the 23d; that it was 'on the morning of the 23d [when he] left the Redmont Hotel * * * from a conference with George N. Fay,' the international secretary of the Upholsterers' Union. This was the alibi witness, whose affidavit that the meeting occurred between 4 and 8 in the afternoon of the 23d was relied upon by the defendant in his alleged newly discovered evidence. The defendant further stated that he walked within another person, after this conference with Fay, and met the witness Collins, who told him that Hagan, the witness who testified as to the pistol loan to the defendant, 'had to get out of town.' The accused denied that the alleged fatal pistol had been loaned to him by Hagan, and said that from his information it was Hagan, Tom Hamrick, and another person who did the target practice with the pistol. He further said that, when Hamrick was arrested in Atlanta, 'they found a box of automatic shells, 45's, in his apartment, but never found the gun, the same shells, I am told, that was found, [or] that they say was bought by Hagan in Birmingham, and Hamrick I am told has admitted or has told different ones that he did bring that gun on that day back to Atlanta; and that is the gun, to the best of my knowledge, that was shot in the woods by them,' in the target practice referred to. As to whether he had been identified by the wife of the deceased at the police station in Atlanta, after his arrest, he said that she had then accused him of the homicide, and that he had denied her accusation. With regard to the whereabouts of Hamrick on the date of the homicide, referred to by the defendant as the person in possession of the alleged fatal pistol and other weapons mentioned in the statement and testimony, the State introduced prison records, a bond, and oral testimony, that on April 21, 1935, Hamrick was in the custody of the Atlanta police department, was delivered to the sheriff of Clarke county, and that his release on bond from such custody did not occur until April 30, 1935.
In support of a ground of his motion for new trial the defendant presented affidavits setting up alleged newly discovered evidence. With reference to the showing required by the Code, § 70-205, as to the diligence and the absence of knowledge of the new evidence by the defendant and his counsel at the time of the trial, although the affidavits of counsel recited that before the trial each 'used every effort in his power to discover this and all other pertinent testimony, but was unable to find' the new testimony until after the trial, no facts were stated. The affidavit of George V. Fay was offered to show an alibi, by a statement that at the time of the homicide the defendant was with him (about 7:30 p. m. in Atlanta) between the hours of 4 and 8 in the afternoon at the Redmont Hotel in Birmingham, Ala. The defendant, in his statement to the jury, in the language above quoted, fixed the time of such meeting as in 'the morning.' In his affidavit to show diligence he stated that he did not know and could not have learned that the alibi witness 'would testify as set out in his affidavit.' The remaining alleged newly discovered evidence related to the positiveness of the identification of the defendant by the widow of the deceased, was merely of impeaching character, and was rebutted by counter affidavits of the State. As to her identification of the defendant at the police station after his arrest, which was denied in one of the affidavits, the defendant in his statement said that 'she looked at me and says, 'You are the man that killed my husband,'' and that he had replied, 'Mrs. Guyol, you are mistaken.'
The defendant excepted to the admission of testimony of two witnesses as to robberies upon them committed by the defendant in Atlanta on September 17, 1935. In referring, in his statement to...
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