Henderson v. State
| Decision Date | 09 June 1952 |
| Docket Number | No. 17830,17830 |
| Citation | 209 Ga. 238,71 S.E.2d 628 |
| Parties | HENDERSON v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. The evidence in this case was not sufficient to support the conviction of the defendant of the offense charged.
2. The special grounds of the motion for new trial, some of which have some merit, do not of themselves require a reversal.
This is the third appearance of this case in this court. See Henderson v. State, 207 Ga. 206, 60 S.E.2d 345, and Henderson v. State, 208 Ga. 73, 65 S.E.2d 175. When the case was first here, it was held that the evidence was not sufficient to authorize a conviction. The facts need not be again stated here, except as will appear in the opinion. In the instant case, the plaintiff in error was convicted without recommendation and sentenced to be electrocuted. He filed his motion for new trial, which was amended by the addition of eighteen special grounds. The motion as amended was duly denied. The exception here is to that ruling.
Daniel Duke, Atlanta, for plaintiff in error.
Eugene Cook, Atty. Gen., R. L. Addleton, Asst. Atty. Gen., Boykin & Boykin, Shirley Boykin, Carrollton, Wright Lipford, Solicitor-Gen., Newnan, John J. Flynt, Jr., Solicitor-Gen., Griffin, for defendant in error.
1. When this case was first here, it was held that the fact that the jury was 'authorized to find that, on the night of the killing, the defendant owned the pistol from which the bullets were fired that killed the deceased,' was not sufficient to authorize a conviction. In that case, Justice ALMAND, writing for the court, points out very clearly why the evidence adduced upon the trial was not legally sufficient to sustain the verdict of guilty.
In the instant case, the evidence was substantially the same as in that case, with the additional circumstance that the defendant had at one time lived in the locality where the crime was committed and was familiar with the territory. This additional fact, without more, would, of course, not be sufficient to sustain the verdict.
In the instant case, the lady witness, whom the defendant was alleged to have attempted to attack at the time of the killing, testified: It appeared that the witness did not know the defendant before the night of the alleged crime, and that she therefore at that time did not know his voice. It also appeared that, at the first trial, 'The only evidence in the record as to a description of the person who did the killing is that of the lady witness, who testified that he was a Negro man, and she, who heard his voice and saw him, made no attempt to say that he resembled the defendant in any manner.' Henderson v. State, 207 Ga. 206, 215, 60 S.E.2d 345, 350.
Boiling this testimony down to what it really means, it simply means that the witness gave it as her opinion, based upon the voice and size of the defendant, that he was the man who perpetrated the crime; notwithstanding the fact that she did not know him or his voice at the time of the crime, and the further very significant fact that at the first trial she made no effort to identify the defendant or to tesfity that he 'resembled the defendant in any manner.' Thompson v. Bank of Chatsworth, 30 Ga.App. 443, 118 S.E. 470, 471.
It is true that 'personal identity of...
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