Gale v. State
| Decision Date | 15 March 1976 |
| Docket Number | No. 3,No. 51899,51899,3 |
| Citation | 138 Ga.App. 261,226 S.E.2d 264 |
| Parties | Frankie GALE v. The STATE |
| Court | Georgia Court of Appeals |
Hutto & Palmatary, Cletus W. Bergen, II, Brunswick, for appellant.
John W. Underwood, Dist. Atty., DuPont Cheney, Asst. Dist. Atty., Hinesville, for appellee.
1. A charge of the court which might 'impress upon an obstinate juror never to yield to the argument or reasoning of his fellow jurors' is improper. Maddox v. State, 233 Ga. 874(2), 213 S.E.2d 654. A question directed by an attorney to jurors on voir dire, slanted to elicit the answer that they would 'never compromise your opinion even though eleven members of a jury will try to convince you otherwise' was properly disallowed on objection for the same reason. The sustaining of the objection was not ground for a mistrial as contended.
2. The defendant never denied that he shot and killed one Amerson, with whom he believed his wife to be in love, in a restaurant where she was an employee. Several eyewitnesses testified, as did Gale, with the result that various discrepancies emerged, but it was established that Gale's wife and Amerson were at a table in the back of the restaurant when the defendant entered, and that he approached the table. Which man first hit the other is disputed. They then grappled to the floor with Amerson on top. Amerson, in military uniform, had a pistol in a holster in his belt; the defendant was unarmed. Two shots were fired while the contestants were prone, then Gale stood up, Amerson's pistol in his hand, and continued to fire until the chamber was empty. Immediately thereafter a justice of the peace whose office was by coincidence immediately across from the restaurant, and who in fact later signed the arrest warrant, entered and asked generally what had happened. On being told Amerson was dead, he cried out: 'For God's sake who killed him?' and the defendant spoke up saying, 'I did.' Testimony to this effect was given by the justice of the peace and objected to on the grounds (a) that the witness' name was not on the list of witnesses furnished to defense counsel, and (b) that he was a law enforcement official and had elicited the information without first informing the defendant of his Miranda rights. As to the first objection, the prosecuting attorney stated in his place 'that I first became aware of the information that this witness had this morning at approximately 9:00 o'clock,' thus meeting the requirements of Code § 27-1403. Mitchell v. State, 226 Ga. 450(3), 175 S.E.2d 545. As to the latter objection, the defendant's statement was not in response to any interrogation directed at himself. It came within a couple of minutes of the time he fired the pistol in full view of everyone in the room. Had the witness been any private citizen, the court's ruling that the statement was a part of the res gestae would doubtless go unchallenged, and the mere fact that the newcomer was in fact a legal official who later issued an arrest warrant is not shown to have the slightest bearing on the chain of events. The testimony was properly admitted.
3. The defendant's wife, Karen, was not in the state at the time of his trial. The defense offered another witness who testified that she had spent the day following the shooting with Karen, who had talked about her relationship with her husband and the victim. The defense further expected the witness to testify that Karen had told her she spent the night prior to the shooting with the deceased; this was objected to and correctly excluded as hearsay. The defendant appears to urge that such testimony is admissible from necessity under Code § 38-302 to show motive and explain conduct. In this case the conduct belongs to the absent witness, the motive to the defendant, and neither to the witness testifying. The issue is not whether Karen Gale had committed adultery but whether the defendant thought she had; his testimony alone could establish this. Its credibility might be bolstered by the wife's testimony that she had admitted as much to him before the homicide, but not that she had admitted it to another person afterward. There is therefore no true 'necessity' for such testimony, but in any event necessity is not enough to justify hearsay. 'The two underlying reasons for any exception to the hearsay rule are a necessity for the exception and a circumstantial guaranty of the trustworthiness of the offered evidence-that is, there must be something present which the law considers a substitute for the oath of the declarant and his cross examination by the party against whom the hearsay is offered.' Chrysler Motors Corp. v. Davis, 226 Ga. 221, 224, 173 S.E.2d 691, 693 quoting from 29 Am.Jur.2d 554, Evidence, § 496. As observed (p. 225, 173 S.E.2d 691) the rule which renders self-serving statements inadmissible is the same in criminal prosecutions as in civil actions. The same applies to the statement here. No substitute can be offered for the absent oath or the impossibility o cross examination.
4. The defendant testified that he reached over a table at Amerson, Amerson hit him with a sugar canister, the men grappled and went down with Amerson on top, Amerson leaned back and put his hand on the gun in his belt holster, the defendant grabbed the top of his wrist; Amerson held the gun during the first two shots which went off in the holster; it then fell on the defendant's chest, he retrieved it, and he does not remember then standing over Amerson firing into his chest. Part of a statement signed by the defendant was then read to him for purposes of impeachment as follows: To this the defendant responded: 'I probably said that in there, I don't know, because what I said on the tape . . . I said a lot of things on the tape because we talked for forty-five minutes to an hour.'
The state did not and apparently due to certain defects could not introduce the entire statement into...
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