Jordon v. State, 28954
| Decision Date | 17 September 1974 |
| Docket Number | No. 28954,28954 |
| Citation | 232 Ga. 749,208 S.E.2d 840 |
| Parties | Jack JORDON v. The STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. It was not error to refuse to allow the appellant to prove the character of the deceased for violence by proof of specific acts.
2. The trial judge was authorized to find that the statement made by the appellant while in custody was voluntary and admissible.
3. No reversible error is shown in the questions of the prosecuting attorney, on cross examination, to character witnesses for the appellant.
4. The trial judge fully charged on justifiable homicide, and it was not error to refuse to charge in the language of Code Ann. § 26-705 (Ga.L.1968, pp. 1249, 1270; Ga.L.1969, pp. 857, 859).
5. The trial judge's instructions on the presumption arising from the commission of a homicide by the use of a deadly weapon, and on the burden of proof where the accused raises an affirmative defense, were erroneous under the evidence in this case.
6. No objection was made to alleged improper remarks of the prosecuting attorney in his argument to the jury, and they can not be the basis for review.
7. The principles contained in the appellant's requests to charge were adequately covered by the instructions given, and it was not error to refuse to give the requested charges.
8. Whether the homicide was murder was a question for determination by the jury.
9. This court will not make an inquiry into the evidence received by the grand jury in finding a true bill.
10. Except as held in Division 5, no error is shown in the grounds of the motion for new trial, as amended.
Grace W. Thomas, Atlanta, for appellant.
Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, Asst. Dist. Atty., Arthur K. Bolton, Atty. Gen., and Thomas P. Burke, Deputy Asst. Atty. Gen., Atlanta, for appellee.
Jack Jordon was convicted of murder in the Superior Court of Fulton County, and sentenced to life imprisonment. He appeals from the verdict and sentence, and enumerates fourteen alleged errors, which include the grounds of his motion for new trial, as amended.
The state's evidence, in brief, is that which follows.
Henrietta Weaver testified: On the date of the homicide the appellant and his wife, Jacqueline, and the witness and James Bell, the deceased, (who lived in the apartment with the witness), had been to a 'political' party. They came back to the witness' apartment at about 2:00 a.m. The appellant and the deceased went out together. After they came back, the deceased went to bed. The witness was talking with the appellant and his wife, and stated that the daughter of the deceased had gotten fat. The deceased jumped up and said, 'What you talking about my child for?' The deceased started cursing and pulled a knife on the witness. The appellant told his wife and the witness to go out on the porch, that he would 'cool him down.' They went outside, and heard tussling and some glass. They heard somebody running down the steps and thought it might be the deceased, so they ran behind the building. The appellant came out of the building, jumped in his car, and drove off very fast. The appellant's wife kept calling him and he would not stop. She suggested that they get a cab and go to her home, and come back in the morning, stating that the deceased might be all right then. The witness, her daughter, and a baby she was keeping, went with the appellant's wife to her home. The witness left because she knew the deceased was drunk and she thought the appellant was trying to 'cool' him down. She did not learn that the deceased was dead until about 9:00 that morning. The deceased was a larger man than the appellant.
Regina Weaver, the daughter of Henrietta Weaver, testified: When she woke up the baby was crying, and the deceased was telling the appellant to get out, and he would not get out. She saw them scuffling on the floor. The deceased pushed the appellant out the door. After the appellant left she went with her mother to the home of the appellant. While they were in the cab she saw the appellant in his car driving back toward her mother's apartment. After the fight, she saw a green vase and a prayer plate that were broken.
The police officer who first investigated the homicide testified: When he arrived on the scene the appellant was standing on the sidewalk, and he said that somebody was shot. The appellant took him to the dead body. He asked the appellant if he knew anything about it, and the appellant replied that they had been fighting and he shot the deceased.
The second officer investigating the homicide testified: The appellant stated to him that he shot the deceased with a pistol and the pistol was in his car. The appellant gave him the keys to his car, and the witness found the pistol. The appellant told him that they had a fight, and he left and came back; that they got in another fight and he shot him.
Mr. Dubose, of the Atlanta Police Department, testified that he interviewed the appellant, and the appellant made a written statement, after being advised of his constitutional rights. The material part of this statement follows.
On Saturday night, 8/25/73, shortly after 10:00 p.m., me and Jacquelyn, my wife, went over to Henrietta Weaver's apartment . . . When we got there we picked up Henrietta and James (the deceased) and went to a political party on Canola Drive. We stayed there until around 1:00 a.m., 8/26/73.
'After we left the party, we went back to the apartment on Dargan Place. When we got there, we talked for about five minutes. Then me and James went down on Auburn Avenue and got a beer. Then we went back to the apartment.
'When we got back to the apartment we went in and sat down and Henrietta told James not to turn the record player too loud because it might wake the baby. Then James said, 'I'm going to bed anyway,' and went into the bedroom. After James went into the bedroom my wife asked me if I wasn't about ready to go and I said yes. Then we got up and my wife and Henrietta started talking. Then Henrietta said, 'James' little girl's back is wide and fat.' Then James came out of the bedroom and said, 'I been listening to what y'all said about my daughter.' Then James started getting onto Henrietta and I told James, 'Man, don't get yourself in any trouble over that.' Then James asked me what I had to do with it and I told him I didn't have anything to do with it but it wasn't worth him getting in trouble over that.
hand. My wife told me, 'He's got a knife Jack,' and I told my wife to go on downstairs and her and Henrietta went on downstairs.
'After my wife and Henrietta went on downstairs Henrietta's daughter came out of the bedroom with the baby and said, 'Why don't y'all stop that?' I told her to tell James to stop, that I couldn't stop because I wasn't going to let James hurt me. Then James got a bowl from somewhere, I don't know where he got it from, and he hit me in the head with it two times on the left side of the head. Then I ran down the stairs to my car. When I got to my car I opened the trunk and got my gun, a .22 revolver. After I got the gun out of my trunk I went back up to the corner of the apartment building and James was coming down the steps. I told James I had took all I could take and if he came down on me I was going to kill him. I didn't see anything in his hands, but he kept coming. James said something to me but I don't remember what it was. When James got to the bottom of the steps, I told him not to come on me no further but he kept coming and I fired. I don't know if I hit James or not, but when I fired he went around the front of a black Cutlass Supreme Oldsmobile. When James went around the front of the car, I went to the back and fired at him again across the trunk. When I fired this time, James fell. I don't know exactly how many shots I fired. Then I went around and looked at James. After I looked at James I backed away from him. Then I reloaded the gun and went to a pay phone at the corner of Holderness and Lucille Avenue and called the police.
1. In enumerated errors 3 and 4 the appellant complains of the sustaining of the state's objections to the questions of counsel for the appellant, on cross examination of the state's witness Henrietta Weaver, as to whether this witness saw the deceased on a specified date shoot Dan Tucker with a pistol; whether she had ever had to take her gun away from the deceased, or have someone else take it away from him; and whether it was the customary behavior of the deceased to pull a knife on her. It is asserted that counsel should have been allowed to pursue these questions to show the character of the deceased for violence.
The character of the deceased for violence can not be established by proof of specific acts. Andrews v. State, 118 Ga. 1, 3, 43 S.E. 852; Warrick v. State, 125 Ga. 133, 141, 53 S.E. 1027; Smithwick v. State, 199 Ga. 292, 295(1), 34 S.E.2d 28; Black v. State, 230 Ga. 614(3), 198 S.E.2d 314.
It was not error to refuse to allow the witness to answer these questions.
2. It is asserted in enumerated error 5 that the court erred in admitting in evidence the statement made by the appellant while he was in custody, over the objection that he was not represented by counsel at the time the statement was made.
A separate hearing was held on the admission of this statement. The officer taking the statement testified that he fully advised the appellant of his constitutional rights, including the right to c...
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