Henderson v. State
| Decision Date | 02 September 1975 |
| Docket Number | No. 29934,29934 |
| Citation | 218 S.E.2d 612,234 Ga. 827 |
| Parties | Leroy HENDERSON v. The STATE. |
| Court | Georgia Supreme Court |
Wynn Pelham, Lawrenceville, for appellant.
Bryant Huff, Dist. Atty., Dawson Jackson, Asst. Dist. Atty., Lawrenceville, Arthur K. Bolton, Atty. Gen., Lois F. Oakley, Deputy Asst. Atty. Gen., Atlanta, for appellee.
Appellant Leroy Henderson was convicted by a jury of murder and sentenced to life imprisonment. Because some of the enumerations of error are based upon alleged errors in the charge rather than the general grounds, the statement of the facts of this case includes testimony favorable to the appellant for the purpose of determining whether the charge of the court was correct.
While helping the deceased move into a trailer, appellant dropped some of the deceased's belongings. The deceased cursed appellant, threatened to shoot him, and snapped a .38 caliber pistol at him. Saying he would be back, appellant ran home, a distance of about 200 feet. Appellant testified that the reason he ran home was because he was scared, not because he was mad. Appellant got a .22 rifle and returned to the corner of a house about 75 to 80 feet from the trailer, where he waited thinking it was wrong to get the gun and he would try to talk with the deceased.
The deceased and two companions left the trailer approaching the appellant's location. The appellant called the deceased, saying 'Hey Charlie,' or 'Hey Charlie, I told you I would get you.' According to appellant, the deceased drew his pistol. Appellant shot the deceased in the forehead from a distance of about 62 feet. Although the deceased's two companions stated they did not see the deceased draw his pistol, a .38 found near the victim's body contained two bullets, one with firing pin indentation.
At least 10 minutes elapsed between the time the appellant left the trailer and the shooting. Appellant testified that he shot in self-defense.
Appellant has enumerated 5 alleged errors, State, supra at 615, 198 S.E.2d at 315. here.
1. Appellant contends that the court erred (a) in refusing to allow appellant to testify that the deceased had a reputation for a particular type of violence, to wit: shooting people, (b) in refusing to allow appellant to testify that deceased had shot one man (offered to show appellant's state of mind), and (c) in refusing to allow a witness to testify that a few hours earlier the deceased, in a drunken rage, had shot at the witness (offered to show that the deceased was in a drunken, violent mood). It does not appear that appellant's proffered testimony that the deceased had shot one man, had reference to the shooting earlier that day involving the witness.
As a general rule, the character of a murder victim is irrelevant and inadmissible in the murder trial. See Code § 38-202. It is unlawful to murder a violent and ferocious person, just as it is unlawful to murder a nonviolent and inoffensive person. Doyal v. State, 70 Ga. 134, 148.
Proof of violent and turbulent character of the deceased becomes admissible when it is shown prima facie that the deceased was the assailant, that the accused had been assailed, and that the accused was honestly seeking to defend himself. Black v. State, 230 Ga. 614(3), 198 S.E.2d 314, and cases cited.
However, 'It is well established by decisions of this court that general character for violence of the deceased can not be established by specific acts.' Black v. State, supra at 615, 198 S.E.2d at 315.
In the case before us, appellant testified that the deceased had a general reputation for violence. He was not permitted to testify that the deceased had a reputation for a particular type of violence, to wit: shooting people.
Appellant acknowledges the rule that the general character for violence of the deceased cannot be proved by specific acts. He contends, however, that this case falls between general reputation and specific acts, and that he should have been permitted to testify as to the deceased's general reputation for a specific type of violence, namely shooting people, because that type of violence was involved in this case. He contends that proof of a particular type of violence is not proof of specific acts.
The reasons for the rule prohibiting proof of specific acts of violence appear to be at least threefold: (1) A single act may have been exceptional, unusual, and not characteristic and thus a specific act does not necessarily establish one's general character; (2) although the state is bound to foresee that the general charcter of the deceased may be put in issue, it cannot anticipate and prepare to rebut each and every specific act of violence; and (3) permitting proof of specific acts would multiply the issues, prolong the trial and confuse the jury. Andrews v. State, 118 Ga. 1, 3, 43 S.E. 852.
To have permitted the appellant to testify that the deceased had a general reputation for shooting people would not have been proof of any specific act, would not have required the state to rebut any specific act, and would not have prolonged the trial or confused the jury.
To limit the evidence to proof that the deceased had a general reputation for violence, without permitting proof that he had a reputation for shooting people, leaves the testimony as to violence so general, conclusory and vague as to be of little benefit to the accused. Moreover, the deceased might have had a reputation for stabbing people, in which event such reputation would have been of little or no probative value under the facts of this case.
We conclude that the trial court erred in excluding testimony as to the deceased's general reputation for shooting people.
Appellant next contends that the trial court erred in excluding the testimony of appellant that the deceased had shot one man. Such testimony would violate the rule prohibiting proof of specific acts. However, appellant argues that this testimony was offered for the limited purpose of showing appellant's state of mind.
It appears that testimony as to the general reputation of the deceased, when admissible in a murder case (see above), may come from two sources, the accused or a witness. Where such testimony comes from a witness, there is no requirement that it be shown that the accused knew of the deceased's general reputation for violence. Assuming that such reputation was not known to the accused, the testimony of the witness is nevertheless admissible to corroborate the testimony of the accused that the deceased was violent on the occasion in question on the theory that a person with a general reputation for violence is more likely to have been violent toward the accused than a person with a gentle reputation. 'It is more probable that a person will act in accordance with his character (disposition) that that he will act contrary to it.' Green, Georgia Law of Evidence, § 65, p. 160.
On the other hand, where the accused testifies as to the deceased's reputation for violence, and that the accused knew of that reputation at the time in question, such testimony as to reputation both corroborates (as above) and shows the state of mind (reasonable fear) of the accused. See Dennenberg v. Berkner, 118 Ga. 885(2), 45 S.E. 682.
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