Fountain v. State
| Decision Date | 05 November 1971 |
| Docket Number | No. 26780,26780 |
| Citation | 228 Ga. 306,185 S.E.2d 62 |
| Parties | Fannie Lee FOUNTAIN v. The STATE. |
| Court | Georgia Supreme Court |
Eugene A. Deal, Frank A. Holloway, Atlanta, for appellant.
Nat Hancock, Dist. Atty., Jefferson, Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Executive Asst. Atty. Gen., Courtney Wilder Stanton, David L. G. King, Jr., Asst. Attys. Gen., Atlanta, for appellee.
Syllabus Opinion by the Court
Fannie Lee Fountain was indicted, tried and convicted of the murder of her husband, Frank Fountain, and sentenced to life imprisonment. The appeal is from the judgment overruling her motion for new trial as amended.
1. The overruling of the general grounds of the motion (enumerated error 1) is not here ruled on because the evidence may not be the same on the new trial hereby granted in Division 4 hereinafter.
2. The exclusion of two jurors, whose answers to questions propounded by the district attorney made it clear that they would under no circumstances imaginable impose capital punishment, was not error. Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776; Pass v. State, 227 Ga. 730(10), 182 S.E.2d 779 and cit. Furthermore, "(w)here the sentence imposed in a capital felony case is not a death sentence it is no ground to set aside such sentence that prospective jurors who were opposed to capital punishment were excluded from service.' Walker v. State, 225 Ga. 734(1), 171 S.E.2d 290 and cit.; Brown v. State, 226 Ga. 114, 115, 172 S.E.2d 666.' Massey v. State, 226 Ga. 703(7), 177 S.E.2d 79, cert. den., 401 U.S. 964, 91 S.Ct. 984, 28 L.Ed.2d 248. Enumerated errors 2 and 3, complaining of the exclusion of the two jurors, and enumerated as error #4, complaining of the challenge to the array of jurors on this ground, are therefore without merit.
3. The court did not err, as contended in enumerated errors 5 and 6, in granting the district attorney's request, after invoking the rule of sequestration, that G.B.I. Agent Stone, who had investigated the case, and Sheriff Harrison, who had also investigated and was designated 'prosecutor' on the indictment, be permitted to remain in the courtroom to assist in the prosecution of the case and to testify after other witnesses for the State had been examined in their presence. This was a matter for the trial judge's sound discretion, which is not shown to have been abused. Spurlin v. State, 222 Ga. 179(2), 149 S.E.2d 315 and cit. Even a violation of the rule does not disqualify a witness from testifying. Pippins v. State, 224 Ga. 462, 464, 162 S.E.2d 338 and cit.
4. Enumerated error 7 is the failure to allow the defendant to raise the question and defense of insanity and to request the jury to return a verdict of 'not guilty by reason of insanity' without first filing a written plea other than her general plea of 'not guilty.' Abrams v. State, 223 Ga. 216, 226, 154 S.E.2d 443, 451. The section of the Code relating to the special plea applies only to mental derangement at the time of the trial, which was not here contended. See Griffin v. State, 195 Ga. 368, 375, 24 S.E.2d 399, citing Danforth v. State, 75 Ga. 614(3), 58 Am.Rep. 480. Accordingly, the court erred in precluding defense counsel from introducing evidence on insanity at the time of the perpetration of the alleged crime under her general plea of not guilty, which error is presumed to be harmful and requires the grant of a new trial.
5. Enumerated errors 8 and 9 complain of a doctor's and a deputy sheriff's being allowed to testify as to their conclusions that there had been no fight preceding the shooting of the decedent. The doctor's opinion was admissible, under Code § 38-1710, because it was based upon his medical observations, such as the absence of marks or bruises on the body other than the shotgun shell wound and the absence of muscle spasms or contractions, indicating to him that the decedent was asleep when killed. The deputy sheriff's opinion was admissible on the basis of his previous experience as a law officer investigating fight scenes and also his personal observation of the decedent's house after the commission of the crime. These enumerated errors are without merit.
6. Enumerated errors 10, 11, 12 and 13 complain of the admission in evidence of State's exhibits numbered 5 through 13 and testimony concerning...
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Benefield v. State
...experienced in a particular area of law enforcement to render an opinion based upon stated and observed facts. See Fountain v. State, 228 Ga. 306, 308(5), 185 S.E.2d 62. He may, as an expert, testify about the behavior of a particular class or category of criminal offenders. See Dandridge v......
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Davis v. State
...Disby v. State, 238 Ga. 178(1), 231 S.E.2d 763 (1977); Jarrell v. State, 234 Ga. 410(6), 216 S.E.2d 258 (1975); Fountain v. State, 228 Ga. 306(3), 185 S.E.2d 62 (1971). In McNeal v. State, 228 Ga. 633(4),187 S.E.2d 271 (1975), we found no abuse of discretion in the trial judge allowing an i......
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Allen v. State, s. 30311
...v. State, 130 Ga.App. 555, 557, 203 S.E.2d 874 (1974); also Pippins v. State, 224 Ga. 462, 162 S.E.2d 338 (1968); Fountain v. State, 228 Ga. 306, 185 S.E.2d 62 (1971); Prevatte v. State, 233 Ga. 929, 214 S.E.2d 365 (1975). But, see Montos v. State, 212 Ga. 764, 95 S.E.2d 792 Enumerations 9,......
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Parham v. State
...of the trial court. Jarrell v. State, 234 Ga. 410(6), 216 S.E.2d 258; McNeal v. State, 228 Ga. 633(4), 187 S.E.2d 271; Fountain v. State, 228 Ga. 306(3), 185 S.E.2d 62; Kennemore v. State, 222 Ga. 362(3), 149 S.E.2d 791; Spurlin v. State, 222 Ga. 179, 149 S.E.2d 315. The question presented ......