Gresham v. State
| Decision Date | 09 June 1960 |
| Docket Number | No. 20876,20876 |
| Parties | Hutner GRESHAM v. STATE. |
| Court | Georgia Supreme Court |
R. M. Nicholson, Watkinsville, Joseph J. Gaines, Athens, for plaintiff in error.
D. Marshall Pollock, Solicitor-Gen., Monroe, Eugene Cook, Atty. Gen., Rubye G. Jackson, Asst. Atty. Gen., for defendant in error.
Syllabus Opinion by the Court
Hutner Gresham was indicted, tried, and convicted of murder. On the jury's recommendation, he was sentenced to life imprisonment. He was denied a new trial on his amended motion therefor, and the exception is to that judgment. Held:
1. It is alleged in one of the special grounds of the motion for new trial that the court erred in excluding a portion of the testimony which the State's witness Lonnie Thompson gave on cross-examination, on the ground that it was hearsay. In the circumstances of the case, we think that the excluded evidence was relevant, material, and that the court should have allowed it to remain in evidence. The defendant was on trial for killing his son-in-law, who was at that time living separate and apart from his daughter and their three small children. His daughter and their children had come to the defendant's home and he was supporting them. She was out with several others, including the deceased, on the night of the homicide, and he made an unprovoked physical assault on her, striking her in the face several times. The witness Thompson and several others, including Bud Nunnally, went to the home of the defendant reaching there about midnight, and Bud Nunnally went to his door to tell him about the assault on his daughter, and to get him to go with them to the place where she was for the purpose of bringing her home. In his statement to the jury, the defendant said: On the night of the killing, The evidence which the defendant contends was erroneously excluded is the following: Q. We do not think that the excluded evidence was hearsay; but, if so, it was nevertheless admissible under Code § 38-302, which provides that, when 'information, conversations * * * and similar evidence are facts to explain conduct and ascertain motives, they shall be admitted in evidence, not as hearsay, but as original evidence.' For cases so holding see Moss v. Moss, 147 Ga. 311(3), 93 S.E. 875; Harris v. State, 191 Ga. 555(6), 13 S.E.2d 459; and Bryant v. State, 191 Ga. 686(14), 13 S.E.2d 820. In the instant case, the excluded evidence was clearly admissible for the purpose of explaining the defendant's conduct on the night of the homicide when notified that his daughter was being assaulted by her husband, and for the purpose of ascertaining his motive in going from his home to the place where she was being thus abused by the deceased. Hence, this ground of the motion for new trial is meritorious.
2. Another special ground complains of the judge's failure to charge on the offense of voluntary manslaughter as defined by Code, § 26-1007, though no request for such a charge was made. This position is well taken. On the trial of a murder case if there is any evidence to create a doubt, however slight, as to whether the offense is murder or voluntary manslaughter, instructions as to the law of both offenses should be given. Crawford v. State, 12 Ga. 142(6); Wynne v. State, 56 Ga. 113, 114; Jackson v. State, 76 Ga. 473, 478; Strickland v. State, 133 Ga. 76(1), 65 S.E. 148. Parents have the right to protect their children. Code § 26-1015. An actual unprovoked assault on the child of a slayer is in law the equivalent of such an assault upon the slayer himself, and if there is not sufficient cooling time between such an assault on the slayer's child and the killing for the voice of reason and humanity to be heard, of which the jury in all cases shall be the judges, the offense is voluntary manslaughter and not murder. Applying these principles of law to the evidence in this case, including that which was erroneously excluded, we hold that the court erred in failing to instruct the jury on the law of voluntary manslaughter, without a request therefor.
3. The defendant introduced no evidence and the State's evidence did not require a charge on involuntary manslaughter, either in the commission of an unlawful act or in the commission of a lawful act without due caution and circumspection. And even if it can be said that the defendant's statement to the jury injected that issue into the case, a failure to charge on that subject of the law was not error since there was no request for such an instruction....
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People v. Brooks
...v. United States (1893) 150 U.S. 62, 14 S.Ct. 9, 37 L.Ed. 998; Whatley v. State (1890) 91 Ala. 108, 9 So. 236; Gresham v. State (1960) 216 Ga. 106, 115 S.E.2d 191; State v. Turner (1912) 246 Mo. 598, 152 S.W. 313; Commonwealth v. Paese (1908) 220 Pa. 371, 69 A. 891; Butler v. State (1894) 3......
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Thompson v. State
...24–4–8 was repealed by the new Evidence Code and reenacted as OCGA § 24–14–8 (2013). 2.Biggers v. State, 109 Ga. 105, 106, 34 S.E. 210 (1899). 3.Gresham v. State, 216 Ga. 106, 109(5), 115 S.E.2d 191 (1960). 4.Tate v. State, 104 Ga.App. 699(1), 122 S.E.2d 528 (1961). 5.Wilson v. State, 67 Ga......
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Kellett v. State, 7 Div. 209
...false pretenses case, numerous statements and documents were held admissible on the issue of the defendants' intent); Gresham v. State, 216 Ga. 106, 115 S.E.2d 191 (1960) (in a murder case, statements told to the defendant were admissible as explanatory of his State v. Morgan, 211 La. 572, ......
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Strickland v. State
...be given the jury within the sound discretion of the trial court. State v. Stonaker, 236 Ga. 1, 222 S.E.2d 354. See also: Gresham v. State, 216 Ga. 106, 115 S.E.2d 191; Askins v. State, 210 Ga. 532, 538, 81 S.E.2d 471, Appellant further complains that the charge as given was misleading and ......