Johnson v. Jackson, 52588

• Decision Date: 14 October 1976
• Docket Number: No. 52588,No. 3,52588,3
• Citation: 230 S.E.2d 756,140 Ga.App. 252
• Parties: Margaret JOHNSON et al. v. Bledsoe JACKSON
• Court: Georgia Court of Appeals

Page 756

230 S.E.2d 756

140 Ga.App. 252

Margaret JOHNSON et al. v. Bledsoe JACKSON.

No. 52588.

Court of Appeals of Georgia, Division No. 3.

Oct. 14, 1976.

Rehearing Denied Oct. 29, 1976.

E. Lynn Mitchell, LeRoy Langston, Atlanta, for appellants.

Greer & Klosik, Richard G. Greer, J. Roger Thompson, Atlanta, Sanders Mottola, Haugen, Wood & Goodson, Newnan, for appellee.

WEBB, Judge.

This appeal arises from an action for the negligent homicide of a minor brought by his parents Margaret and Judson Lee Johnson. The basic facts are undisputed.

On December 30, 1974, at about 5:20 p.m., the defendant, Bledsoe Jackson, returned from work to his home in Newnan. With him in the car was his wife. Jackson was employed as a deputy U.S. Marshal in Atlanta and ordinarily arrived home between 7:00 p.m. and midnight. He was dressed in civilian clothes but carried a pistol in a hip holster under his jacket. After stopping at the mailbox he drove down the driveway, which runs from the street along the left side of the front yard and house, and around to the garage, which is located at the extreme right rear of the house. The garage is a part of the house, separated from the kitchen by a common wall and a door. As Jackson turned behind the house he observed for the first time another car containing two occupants stopped near the garage with the motor running and with the front of the vehicle headed out of the driveway. Both were white males weighing in excess of 200 pounds, were dressed in khaki work-type clothes and caps, and had several days' growth of beard. Jackson parked at the garage door, leaving enough clearance for the driver of the other car, the deceased minor Robert Johnson, ¹ to drive out of the driveway. He got out of his car, walked over to the driver's side of the other car, and, seeing that the garage door which he had left closed was now partially open, asked 'What are you fellows doing here in my yard?' Robert Johnson replied, 'We are hiding.' Jackson thought Ray Johnson said at the same time, 'We are waiting for somebody.' Jackson asked Robert Johnson for some identification and Johnson took out his billfold. When Jackson asked Johnson to remove his driver's license Johnson threw the billfold down, swerved the car to the left, striking Jackson, and drove off 'as fast as he could.' Jackson testified that while off balance he drew his pistol from his holster and fired two shots, 'attempting first to disable the vehicle by hitting the left rear tire; my second shot was fired to mark the vehicle in the event they were successful in escaping from my property,' because he was unable to see the license tag. Robert Johnson was struck in the left rear side of the head by one of these bullets resulting in his death several hours later. Ray Johnson was arrested at gunpoint by Jackson and turned over to the sheriff. Subsequent investigation by the GBI showed that there had been an attempted burglary of the house. Marks on the back door matched a tire tool found in the trunk of the Johnson car and a single footprint in the condensation on the concrete floor of the garage was the same tread and size as the sole of the shoes worn by Robert Johnson. The jury returned a verdict in favor of Jackson.

1. In qualifying the panel of 24 prospective jurors the trial court asked if they were related to any of the attorneys, and there was no response. On voir dire plaintiffs' counsel discovered that one prospective juror was the nephew of a defense attorney and another was his secretary. Error is enumerated on the court's refusal to strike these jurors.

The voir dire was not recorded and plaintiffs have not asserted that a challenge for favor was made or an examination of these jurors was conducted pursuant to Code Ann. § 59-705. In this regard see Anthony v. State, 112 Ga.App. 444(1), 145 S.E.2d 657 (1965). Nor have they indicated whether the twelve strikes authorized by Code Ann. § 59-703 were exhausted. Nevertheless, we would agree that had this attorney been a party to the litigation or had a financial interest in its outcome, these jurors should have been disqualified. Code Ann. § 59-716; Seaboard Coastline R. Co. v. Smith, 131 Ga.App. 288, 290(1(a)) 205 S.E.2d 888 (1974). However, he was retained only to assist counsel for the defendant in the selection of a jury and was not hired for a fee contingent on the outcome of the case. Accordingly, no error is shown. Wilson v. Atlantic Coastline R. Co., 116 Ga.App. 193, 156 S.E.2d 463 (1967) and citations.

2. Enumerations of error 1, 3 and 4 relate to argument of counsel, testimony and photographs admitted over plaintiffs' objections that they alluded to circumstances unknown to the defendant until after the shooting of Robert Johnson. In effect, it is contended that the court erred in allowing the defendant in his opening argument to state what he intended to prove, i.e., that Jackson had reason to believe that the Johnson brothers were burglars; and then that it was error to permit him to introduce evidence to prove it because such evidence was irrelevant. We find no merit in these contentions.

The first enumerated error in groundless because "(c)ounsel for both parties in either a civil or a criminal case, preliminary to the introduction of evidence, may state to the jury what each expects to prove on the trial . . .' (Citations omitted.)' Lewyn v. Morris, 135 Ga.App. 289, 290, 217 S.E.2d 642, 643 (1975). Nor do we agree that the testimony of five witnesses and the photographer, or the photographs of the footprint on the garage floor and the pry marks at the back door, should have been excluded from evidence simply because Jackson was unaware that they existed at the time he fired the shots. It is clear that Jackson had some reason to believe, because of the location of the strange automobile and the open garage door, that he had interrupted a burglary, and he testified that he did believe the two men to be burglars.

' The object of all legal investigation is the discovery of truth. The rules of evidence are framed with a view to this prominent end, seeking always for pure sources and the highest evidence.' Code § 38-101. Questions of the relevancy of evidence are for the court and no precise and universal test has been established. However, as stated in McNabb v. State, 70 Ga.App. 798, 799, 29 S.E.2d 643, 644 (1944), 'Any evidence is relevant which logically tends to prove or to disprove a material fact which is at issue in the case, and every act or circumstance serving to elucidate or to throw light upon a material issue or issues is relevant.' Garner v. State, 83 Ga.App 178, 185(3) 63 S.E.2d 225 (1950); Glo-Ann Plastic Industries v. Peak Textiles, 134 Ga.App. 924, 925(1), 216 S.E.2d 715 (1975). Moreover, 'When the relevance of evidence is in doubt, the Georgia rule favors its admission and submission to the jury with any needed instructions.' Patton v. Smith, 119 Ga.App. 664(1, 2), 168 S.E.2d 627 (1969). The evidence objected to here was properly admitted because it was relevant to establish whether the deceased was on Jackson's property as a mere trespasser or for the purpose of committing a felony, which was essential to a determination of liability.

3. Appellants insist that the trial court erred in refusing to direct a verdict as to Jackson's liability in their favor. Based upon this court's opinion in Carlton v. Geer, 138 Ga.App. 304, 226 S.E.2d 99 (1976) (application for certiorari abandoned), it is contended that the case should be remanded for a new trial on the issue of the amount of damages only. We do not agree. At issue here is the relation between landowner and burglar or felon, the owner's right and authority to arrest the felon and the allowable force in effectuation thereof, and the duty owed by a landowner to one who is there for the purpose of committing a felony-all of which is for the determination of a jury.

Criminal Code § 26-904(b) provides: 'The use of force which is intended or likely to cause death or great bodily harm to prevent trespass on or other tortious or criminal interference with real property (other than a habitation) or personal property is not justified unless the person using such force reasonably believes that it is necessary to prevent the commission of a forcible felony.' (Emphasis supplied.)

In the Carlton case it was undisputed that the defendant was not acting in defense of habitation or to prevent a forcible felony when he fired at the plaintiff's fleeing truck, and thus was not justified in using force likely to cause death or great bodily harm. Carlton is merely a reiteration of the duty owed by a landowner (or, as in that case, his agent) not to wilfully or intentionally injure a trespasser. See McKinsey v. Wade, 136 Ga.App. 109(1), 220 S.E.2d 30 (1975) (cert. den. Feb. 2, 1976) and citations. Moreover, even assuming that the defendant in Carlton intended to prevent the commission of a crime, or that he was attempting to arrest the plaintiff for trespass to land or attempted deer poaching, it is unlawful to use deadly force to arrest, or to prevent the escape of, one who has committed a misdemeanor even though no other means were available. Paramore v. State, 161 Ga. 166(2), 129 S.E. 772 (1925); Copeland v. Dunehoo, 36 Ga.App. 817, 822(3), 138 S.E. 267 (1927).

Here, however, there was evidence that Jackson's home had been burglarized, or that a burglary had been attempted, by the Johnson brothers and we are not prepared to say that Jackson had no reasonable and probable grounds for suspicion. See Addison v. State, 127 Ga.App. 105(3), 192 S.E.2d 556 (1972). Both burglary and attempted burglary are felonies in Georgia; Criminal Code §§ 26-1601, 26-1001, 26-1006. 'Under the terms of the new statute on burglary it is not necessary that the defendant actually commit the theft-it is sufficient if he enters without authority and with the intent to commit a theft. . . .' Smith v. State, 130 Ga.App. 390, 391(2...