Fowler v. State

• Decision Date: 01 December 1947
• Docket Number: 16036.
• Citation: 45 S.E.2d 439,203 Ga. 124
• Parties: FOWLER v. STATE.
• Court: Georgia Supreme Court

45 S.E.2d 439

203 Ga. 124

FOWLER v. STATE.

No. 16036.

Supreme Court of Georgia

December 1, 1947

Syllabus by the Court.

1. The evidence was sufficient to sustain the verdict.

2. Motions for new trial on the grounds of newly discovered evidence are addressed to the sound discretion of the trial judge, but are not intended to serve the purpose of cross examination.

3. Where a motion for new trial on the grounds of newly discovered evidence is predicated on the affidavit of the attorneys, who relate therein what a person stated to them, but that the person would not make an affidavit thereto for the reason he was afraid of the family of the deceased, such does not constitute a valid and meritorious ground of a motion for new trial.

4. An inaccurate statement in the charge by using the phrase 'if the evidence * * *' instead of 'unless the evidence, * * *' is not reversible error, as it could not have confused or misled the jury where, just preceding and immediately following the inaccurate statement, the charge on the same subject was clear and explicit.

Leonard Fowler was convicted of the murder of Marlen Patterson. The homicide occurred on Tuesday, following a difficulty of the previous Sunday. The killing took place near the back of the house of the accused, the accused being in the house and the deceased on the outside. The shot was fired through the back screen door. The State produced evidence that the deceased was walking in a path near the rear of the house of the accused, unarmed, and was shot as he proceeded down the path. The accused contended that the deceased upon approaching near the house with his hands in his pockets stated, 'I am coming in after you.' 'I am going to kill you.'

Johnson & Johnson and Hammond Johnson, all of Gainesville, for plaintiff in error.

John E Frankum, of Clarkesville, Eugene Cook, Atty. Gen., and Margaret Hartson, of Atlanta, for defendant in error.

ATKINSON Justice (after stating the foregoing facts).

1. The issue of fact as to what occurred at the time of the shooting was a question for the jury, and there being sufficient evidence to authorize the verdict, the court did not err in overruling a motion for new trial on the general grounds.

2. The first ground of the amended motion is based upon newly discovered evidence of John Jenkins. This witness had testified as a State's witness, that a few minutes before the homicide the deceased was walking in a path toward and near the rear of the home of the accused, and that he called the deceased to him and he and the deceased walked away in an opposite direction from the home of the accused, and after a short business conversation he left the deceased, and had gone a short distance when he heard the fatal shot. This witness now makes an affidavit, as to the conduct of the accused when he first met him coming on down the path in part as follows: 'Marlin Patterson (deceased) was coming down the path that leads in a southerly direction from High Street to the backyard of the house in which Leonard Fowler (accused) then lived, and he was stopped over and in a crouching position and seemed as if he was trying to slip up on Fowler's house, and was going in that position toward the back door of Fowler's house.' That part of the foregoing which states '* * * and seemed as if he was trying to slip up on Fowler's house, * * *' would not be admissible evidence in another trial and accordingly not proper for consideration here. Bryant v. State, 197 Ga. 641(12), 30 S.E.2d 259. Eliminating this portion, the substance of the newly discovered evidence is that the accused, when first seen, was coming down the path that leads to the back yard of the accused, stooped over and in a crouching position. By reference to the brief of testimony given by this witness on the trial, it appears that he testified four different times (once on direct, twice on cross, and once on re-direct) as to when and where he first saw the deceased on this occasion. Certainly his demeanor manner, and deportment at that time was a natural and proper subject for cross examination; and failing to elicit this evidence from the witness while he was on the stand would indicate a lack of the necessary diligence required to obtain a new trial on the grounds of newly discovered evidence. Motions for new trial on the grounds of newly discovered evidence are addressed to the sound discretion of the trial judge, but are not intended to serve the purpose of cross examination. Roberts v. State, 3 Ga. 310(2); Gaulden v. Lawrence, 33 Ga. 159(1); Elliott v. Pinkus, 55 Ga. 163(1); Archer v. Hedit, 55 Ga. 200; Dalton v. Drake, 75 Ga. 115(5); Etheridge v. Hobbs, 77 Ga. 531(3), 3 S.E. 251; Poullain v. Poullain, 79 Ga. 11(7), 4 S.E. 81; Hall v. State, 117 Ga. 263(2), 43 S.E. 718; Greer & Co....