Fountain v. State
| Decision Date | 24 September 1975 |
| Docket Number | No. 50973,No. 2,50973,2 |
| Citation | 220 S.E.2d 705,136 Ga.App. 229 |
| Parties | Thomas FOUNTAIN, Jr. v. The STATE |
| Court | Georgia Court of Appeals |
Oliver & Oliver, Robert F. Oliver, Clarkesville, Maylon K. London, Cleveland, for appellant.
V. D. Stockton, Dist. Atty., Clayton, for appellee.
Defendant was indicted for the offense of aggravated assault in that he 'did make an assault upon Horace Holcomb with a certain night stick, a deadly weapon.' The jury found defendant guilty of the lesser offense of simple battery, and the trial judge imposed a sentence of twelve months imprisonment. After denial of his motion for a new trial, defendant brings this appeal. Held:
1. Although the general grounds are raised in defendant's motion for a new trial, this enumeration is neither argued nor supported by citation of authority in defendant's brief to this court. This enumeration may therefore be considered abandoned under this court's Rule 18(c)(2) (Code Ann. § 24-3618(c)(2)). The general grounds are, in any event, unmeritorious, as the testimony of the victim and the corroborative testimony of an eye-witness presented more than sufficient evidence to sustain the jury's verdict.
2. Error is enumerated upon the trial court's refusal to permit testimony regarding events which transpired subsequent to the alleged offense. Defendant's assault charge was based upon an altercation with the victim in the parking lot of a Rabun County tavern. Later that evening the victim and his brother shot any wounded defendant at the latter's residence. The trial judge ruled that testimony regarding this latter occurrence was irrelevant to the issues being tried. Defense counsel objected to this ruling, asserting that the testimony would be admissible under the res gestae rule.
In support of this argument, appellant cites Stiles v. State, 57 Ga. 183, Headnote (4) of which reads: 'Where a difficulty commenced at one groggery and terminated at another, the same night in the same village, all that transpired at both groggeries is admissible as res gestae, though some interval of time may have intervened between the beginning and end of the reencounter.' That case is not applicable to the facts of the instant case in that there the single offense had its inception at one grogery 1 and its completion at the second location. Here the second event involved a subsequent act having no legal connection with the charge on which the appellant was tried.
Code Ann. § 38-305 provides, 'Declarations accompanying an act, or so nearly connected therwith in time as to be free from all suspicion of device or afterthought, shall be admissible in evidence as part of res gestae.' (Emphasis supplied). It is readily apparent that 'res gestae' 2 is wholly unrelated to the victim's subsequent conduct which defendant sought to prove before the jury. Generally, this phrase refers to oral declarations of a spontaneous nature which would otherwise be inadmissible hearsay evidence. 3 The propriety of the court's ruling is therefore controlled by judicial considerations of relevancy.
McNabb v. State, 70 Ga.App. 798, 799, 29 S.E.2d 643, 644.
Sub judice, the State's evidence showed that defendant committed an unprovoked assault and battery upon the victim. Defendant attempted to show justification by asserting that the victim was throwing rocks at him and that his actions were taken in self-defense. Thus, the material factual issues for the jury's determination were clearly delineated. The victim's subsequent aggression at defendant's residence, whether motivated by a continued hostility between these two persons or by revenge for the prior beating, could not have had any bearing upon the guilt or innocence of the defendant in this case. See Morgan v. State, 124 Ga. 442, 445(2), 52 S.E. 748 wherein testimony regarding a stabbing victim's subsequent conduct was held to have been properly excluded as irrelevant. Appellant's enumeration is...
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Westbrook v. State
...as a measure of reliability. OCGA § 24-3-3; Moseley v. State, 179 Ga.App. 698, 699(2), 347 S.E.2d 686 (1986); Fountain v. State, 136 Ga.App. 229, 230(2), 220 S.E.2d 705 (1975). C.A.J. v. State, 127 Ga.App. 813, 814-815, 195 S.E.2d 225 (1973) states: "If the witness' testimony is admissible ......
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...states and emotions." (Citation omitted.) Brantley v. State, 262 Ga. 786, 790, n. 4, 427 S.E.2d 758 (1993); Fountain v. State, 136 Ga.App. 229, 230, n. 3, 220 S.E.2d 705 (1975). The manager's purported refusal to hire Maloney because she is receiving workers' compensation is not an excited ......
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Boatright v. State
...433, 435(3a), 228 S.E.2d 395 (1976); Stanley v. State, 136 Ga.App. 385, 386(2), 221 S.E.2d 242 (1975). See also Fountain v. State, 136 Ga.App. 229, 232(4), 220 S.E.2d 705 (1975). 3. No demonstration of reversible error has been made with regard to Boatright's contention that the court in vi......
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Fountain v. York
...guilty of simple battery and Fountain was sentenced to serve 12 months. On appeal, the Court of Appeals affirmed in Fountain v. State, 136 Ga.App. 229, 220 S.E.2d 705 (1975). Certiorari was denied by this In his petition for habeas corpus, Fountain raised two issues not previously raised: (......