Hearn v. State, 55365
| Decision Date | 16 March 1978 |
| Docket Number | No. 55365,No. 3,55365,3 |
| Citation | 145 Ga.App. 469,243 S.E.2d 728 |
| Court | Georgia Court of Appeals |
| Parties | Sarah L. HEARN v. The STATE |
Elkins, Flournoy & Gemmette, James A. Elkins, Jr., Paul R. Gemmette, Columbus, for appellant.
E. Mullins Whisnant, Dist. Atty., William J. Smith, Asst. Dist. Atty., Columbus, for appellee.
The appellant was indicted for murder after she shot and killed her husband during an argument in their home. She was convicted of voluntary manslaughter as a lesser included offense and filed this direct appeal.
1. It was not error to overrule the appellant's motion for directed verdict of acquittal, although her own account of the incident, in which she claimed that she had acted in self-defense, was the only evidence identifying her as the person who had done the shooting. A jury may be authorized to rely on the incriminating portion of a defendant's testimony while rejecting other portions which are exculpatory. See Cox v. State, 172 Ga. 482(3), 159 S.E. 17 (1931). See also Willis v. State, 63 Ga.App. 262(1), 10 S.E.2d 763 (1940); Jones v. State, 71 Ga.App. 56, 30 S.E.2d 284 (1944). In this case, several of the circumstances surrounding the homicide tend to cast doubt on the appellant's explanation. For example, there was no indication that any physical struggle had taken place prior to the shooting. Also, although the appellant testified that her husband had threatened her life just before she shot him, it appears that she secured her pistol well before this time, during a lull in the argument when she might just as easily have left or called the police had she perceived a threat to her safety. "While the evidence here was sufficient to authorize the jury to return a verdict of justifiable homicide, as the defendant contends, yet the evidence was also sufficient to authorize the verdict of guilty of manslaughter, and the lower court did not err in denying the motions for directed verdict." Nolen v. State, 124 Ga.App. 593, 184 S.E.2d 674 (1971).
The fact that the motion for directed verdict of acquittal was made and denied at the close of the state's case, when the evidence may not have been sufficient to support a guilty verdict, does not require a different result. See Bethay v. State, 235 Ga. 371(1), 219 S.E.2d 743 (1975).
2. It was not error to allow rebuttal witnesses to testify for the state on the issues of the appellant's character and the victim's reputation for peacefulness over the objection that their names had not been included on the state's list of witnesses. "Calling an unlisted witness in rebuttal is not error." Nunnally v. State, 235 Ga. 693(13), 221 S.E.2d 547 (1975). This is particularly true where, as here, defense counsel was allowed to interview the rebuttal witnesses before they testified. Accord Brown v. State, 235 Ga. 644(2), 647, 220 S.E.2d 922 (1975).
3. On cross examination, the appellant was asked whether she was the beneficiary of any life...
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Jones v. State
...to rely upon the incriminating testimony while rejecting other portions which the jury considers to be exculpatory. See Hearn v. State, 145 Ga.App. 469(1), 243 S.E.2d 728; Shaw v. State, 156 Ga.App. 73(1), 274 S.E.2d 27. After the verdict every presumption should be resolved in favor of the......
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Bradham v. State
...names do not appear on the witness list does not constitute error. Mize v. State, 240 Ga. 197, 199, 240 S.E.2d 11; Hearn v. State, 145 Ga.App. 469, 470, 243 S.E.2d 728. We will not speculate what the court's ruling would have been had appellant requested merely the right to interview the wi......
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Stanley v. State
...that our decision is predicated only on an inapplicable charge. See Moralez v. State, 141 Ga.App. 208, 233 S.E.2d 53; Hearn v. State, 145 Ga.App. 469(1), 243 S.E.2d 728. Judgment SMITH and BIRDSONG, JJ., concur. ...
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