Green v. State, 41436
| Decision Date | 08 September 1965 |
| Docket Number | No. 2,No. 41436,41436,2 |
| Citation | 145 S.E.2d 80,112 Ga.App. 329 |
| Parties | Willie GREEN v. The STATE |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. After a witness is challenged as being incompetent to testify, the decision of the trial court declaring such witness competent after examination will not be interfered with unless such discretion is abused.
(a) Where a ruling is invoked by a party the judgment of the court thereon is not an expression of opinion by the trial court.
2. A hypothetical question, based in part on facts not supported by the evidence, is properly excluded.
3. Where marks, based upon hearsay, are placed on a photograph which is otherwise admissible into evidence a judgment excluding such photograph is not reversible error.
4. Evidence, the admissibility of which is doubtful, should be admitted and its weight left to the determination of the jury.
5. It is not error, in the absence of timely written request, to fail to charge on the shifting of the burden of evidence after the insanity of the defendant has been established.
6. Where documentary evidence is offered as a whole and part thereof is inadmissible it is not error to exclude all such evidence.
7. In as much as the case must again be tried neither the usual general grounds, nor a special ground of the motion for new trial dealing with newly discovered evidence, will be passed upon.
Willie Green was convicted of involuntary manslaughter under an indictment for murder. On the trial there was evidence that the defendant had struck the deceased, his mother, with a piece of stovewood after she 'came at him' with an open knife, that the next day, during another encounter the defendant again struck the deceased, and she was carried to a hospital where she later died. The defendant introduced evidence of his having been twice declared insane and committed to the Milledgeville Hospital, as well as evidence that he was presently incapable of knowing right from wrong. After conviction the defendant's amended motion for new trial was overruled and he now assigns error on such adverse judgment.
Jack N. Gunter, Cornelia, for plaintiff in error.
Herbert B. Kimzey, Sol. Gen., Cornelia, for defendant in error.
1. The first special ground of the defendant's amended motion for new trial assigns error on the ruling of the trial court that a witness was competent after the defendant had raised the question of such witness's competency. Upon the call of such witness the following transpired: Counsel for defendant: 'Your Honor, before this witness testifies we challenge her mental competency.' Solicitor general: 'We will make a showing, Your Honor.' The witness was then asked a series of questions including the question if she knew right from wrong, and what it meant to take an oath, after which the trial court ruled: 'The court holds that she is competent, let the case proceed.' Counsel for the defendant objected: 'Please the court, I don't believe that is adequate,' and the court stated that it had ruled.
Counsel for the defendant did not seek to introduce any evidence contradictory to that offered by the State, and under the decision in Schamoroth v. State, 84 Ga.App. 580, 66 S.E.2d 413, and the cases and Code sections there cited the trial court did not abuse its discretion in ruling the witness was competent to testify. Nor did the ruling of the court that the witness was competent amount to an expression of opinion by the court. See Herndon v. State, 45 Ga.App. 360(4), 164 S.E. 478; Daniels v. Avery, 167 Ga. 54(3c), 145 S.E. 45.
2. Special ground 2 complains of the exclusion of testimony of a witness for the State while being cross examined by the defendant's counsel. The question asked, a hypothetical question, was based in part on facts not supported by the evidence, and the trial court did not err in overruling such ground of the motion for new trial. See Kuttner v. Swanson, 59 Ga.App. 818, 824, 2 S.E.2d 230; Chandler v. Alabama Power Co., 104 Ga.App. 521(1), 122 S.E.2d 317.
3. Special ground 3 complains of the exclusion from evidence of a photograph identified as being of the room where the fatal blow was allegedly struck. The witness who so identified such photograph, and who was not present when the encounter between the accused and the deceased allegedly took place, placed a mark on the photograph 'where he understood the accused was standing when the deceased attacked him with a knife.'
The photograph was of the kitchen where the fatal blow allegedly took place and as such was properly identified as to make the photograph admissible (see Toler v. State, 213 Ga. 12(5), 96 S.E.2d 593), but the addition of the mark placed thereon, and to which the objection was made, as to where the witness understood the accused was standing was hearsay and the trial court did not err in excluding such evidence.
4. Special ground 4 complains of the...
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