Gibson v. State

• Decision Date: 10 April 1934
• Docket Number: 9964.
• Parties: GIBSON v. STATE.
• Court: Georgia Supreme Court

174 S.E. 354

178 Ga. 707

GIBSON v. STATE.

No. 9964.

Supreme Court of Georgia

April 10, 1934

Syllabus by Editorial Staff.

In murder prosecution, allowing testimony that witness saw officer pick up cut shell, called "ringshell," and that shell was cut all around, over objections that witness had not qualified as expert, that testimony was hearsay, and that shell was best evidence, held not error, where witness also testified to experience with shotgun, and shell was later introduced in evidence.

Failure to renew motion to exclude testimony, overruled "for the present," or to otherwise invoke ruling on its admissibility, waived grounds of objection thereto.

In murder prosecution, testimony relating to empty shotgun shells, gun out of which shells were fired, and shells themselves held properly admitted, over objections that evidence was irrelevant and that shotgun had never been in accused's possession, where there was evidence of accused's previous possession of gun, and that plunger mark on shell found near scene of homicide corresponded with plunger mark on other shells admitted.

Testimony that one jointly indicted with accused for murder had dropped watch during crap game held admissible as identifying accused with murder, in view of other testimony tending to show commission of murder by both defendants, and that accused took watch from body of deceased, and that codefendants attended crap game after murder, where incident testified to occurred.

Alleged newly discovered evidence held not to require trial where state made counter showing tending to rebut all alleged newly discovered evidence (Civ. Code 1910, § 6086).

Error from Superior Court, Fulton County; Edgar E. Pomeroy, Judge.

Emmett Gibson was convicted of murder, and he brings error.

Affirmed.

Emmett Gibson and Raider Davis were jointly indicted for the murder of Hamp McGee by shooting him with a shotgun. On separate trial Emmett Gibson was convicted and sentenced to be executed. His motion for new trial was overruled, and he excepted. The special grounds of the motion 4 to 10 inclusive, relate to rulings on the admissibility of evidence. Ground 11 relates to alleged newly discovered evidence as set forth in an affidavit made by George Ware, a fellow prisoner, as to physical punishment administered by the officers to Emmett Gibson while he was confined in jail also to alleged newly discovered evidence as set forth in an affidavit made by Raider Davis, also a fellow prisoner in Fulton County Jail on April 20, 1933, to the effect that Davis alone committed the homicide, and that he had implicated Emmett Gibson in the hope that it "would make it better for him"; also that certain written confessions of both affiant and Emmett Gibson were extorted by officers. Ground 12 relates to alleged newly discovered evidence as set forth in an affidavit excuted in Baldwin county by Raider Davis at 8:23 a. m. on June 14, 1933, before his execution on that date for murder of a different person, in which affidavit the affiant stated that he alone killed Hamp McGee, and that Emmett Gibson took no part in the commission of the crime; also evidence as to declarations by Raider Davis at different times and up to the moment of his execution, to the effect that he alone committed the murder for which Emmett Gibson had been convicted, and that Gibson had not participated and was innocent of the crime. The only supporting evidence as to the character of George Ware was an affidavit that the affiant "has known one George Ware for the past fifteen years, and that during this length of time he has known George Ware to be a negro of good character and dependability. Deponent further says that he has had occasion to work for this George Ware, and that during this employment of the said George Ware he found him to be an honest and conscientious negro boy." There was no supporting evidence as to the character of Raider Davis. All of the alleged newly discovered evidence tended to contradict evidence introduced by the state on the trial. The state made a counter showing, which tended to rebut all the alleged newly discovered evidence.

John I. Kelley, Frank T. Grizzard, and James R. Venable, all of Atlanta, for plaintiff in error.

John A. Boykin, Sol. Gen., J. Walter Le Craw, and E. A. Stephens, all of Atlanta, M. J. Yeomans, Atty. Gen., and B. D. Murphy and Jno. T. Goree, Asst. Attys. Gen., for the State.

Syllabus

OPINION.

ATKINSON Justice.

1. In the circumstances stated below, it was not erroneous to allow a witness to testify: "I saw a shell out there. * * * I saw the officer pick it up, * * * a cut shell, * * * that is what they call a ringshell, * * * it bunches it. * * * I never have. * * * You can cut them in different places," over the objections: (a) That the witness had not qualified as an expert; (b) that it was hearsay. Nor was it erroneous to allow the same witness to testify: "This one was cut, * * * about that much of it, from my finger up there. It was all cut around. I did not have that shell. The officers had it," over the objection that the shell would be the highest and best evidence. The witness also testified that he had had some experience with a shotgun. The shell was later introduced in evidence.

2. The defendant moved to exclude certain testimony. The court stated: "I overrule the...