Kennedy v. State

• Decision Date: 16 October 1940
• Docket Number: 13280.
• Citation: 11 S.E.2d 179,191 Ga. 22
• Parties: KENNEDY v. STATE.
• Court: Georgia Supreme Court

11 S.E.2d 179

191 Ga. 22

KENNEDY v. STATE.

No. 13280.

Supreme Court of Georgia

October 16, 1940

Syllabus by the Court.

1. The court charged the jury as follows: 'There can be but one of three verdicts returned in this case, which are these 'We, the jury, find the defendant guility;' second 'We, the jury, find the defendant guilty, and recommend that he be punished by imprisonment in the penitentiary for and during his natural life;' third, 'We, the jury find the defendant not guilty.'' After conviction of murder, with recommendation, the defendant filed a motion for new trial, in which he complained of the quoted excerpt, upon the ground that 'it illegally restricted the jury in said case [to] finding one of three verdicts, when, as a matter of law under the evidence in said case, the jury could have returned a verdict different from the ones the court instructed them that it could only return, and could have found the defendant guilty of a minor offense embraced in the major offense alleged in the indictment.' Held, that this ground of the motion is too general and indefinite to present any question of error for determination.

2. The judge did not err in failing to charge on assault and battery. The evidence for the State, if credible, showed that the defendant struck the deceased on the head with a bottle, and it appeared without dispute that the wound thus inflicted resulted in death. In these circumstances the defendant could not lawfully have been convicted of the offense of assault and battery.

3. The charge, 'The law presumes malice from the use of a deadly weapon when it is used in a manner likely to produce death, with the intent to kill, and without justification or mitigation,' was not erroneous as being unwarranted by the evidence, or as expressing an opinion that the instrument alleged to have been used was a deadly weapon and was used in a manner likely to produce death.

4. The charge, 'A reasonable doubt is such a doubt as must arise from a candid and impartial consideration of the evidence in the case,' was not erroneous for the reason, as contended, that such a doubt may arise from a lack of evidence or from the defendant's statement.

5. The testimony of a third person, as to a conversation between the defendant and his wife, heard by the witness a short time before the alleged homicide, was relevant on the question of motive, and was not inadmissible upon the gound that the wife could not testify against her husband.

6. The judge did not err in overruling the ground of the motion based on alleged relationship of a juror within the prohibited degree to the prosecutor; the evidence upon the hearing being sufficient to authorize a finding that during selection of the jury the defendant and his attorney, by a statement of the particular juror, were put upon notice that he was probably disqualified, and failed after such notice to make or require further investigation.

7. Nor did the court err in everruling the ground of the motion based on alleged disqualfication of another juror whose mind, it was claimed, was not perfactly impartial between the State and the accused. On consideration of the evidence introduced by the defendant and the State in reference to this ground, the judge was authorized to find that the juror was not disqualified as contended.

8. The evidence authorized the verdict finding the defendant guilty of murder, and the court did not err in refusing a new trial.

D. C. Jones, of Statesboro, for plaintiff in error.

W. G. Neville, Sol. Gen., and Fred T. Lanier, both of Statesboro, Ellis G. Arnall, Atty. Gen., E. J. Clower, Asst. Atty. Gen., and C. E. Gregory, Jr., of Decatur, for defendant in error.

BELL Justice.

L. A. Kennedy was indicted for the offense of murder in the alleged killing of John Woodward, by 'striking, hitting, and beating the said John Woodward with a certain glass bottle.' He was convicted of the offense charged, with recommendation 'that he be imprisoned for the remainder of his natural life.' His motion for new trial was overruled, and he excepted. The evidence showed that on Saturday night, July 29, 1939, there was a dance at Zetterower's filling station and dance hall, in Bulloch County. The defendant went with his wife and children, in an automobile, to this dance. Among others who attended the dance were the deceased, John Woodward, Dennis Hodges, and Lewis Akins. The evidence tended to show that as the evening passed Kennedy became intoxicated.

Lewis Akins testified: 'I was there when the dance broke up that night. When I came out of the dance hall after the dance was over I stood around there a few minutes, and cranked this boy's L. A. Kennedy's car for him. How came me to have anything to do with the cranking of the car was his wife wanted me to crank it, as she wanted to go home. How she got the car away from there was, I got in the car and cranked it myself. John Woodward and Dennis Hodges pushed the car off, and I cranked it. They pushed it just a few steps down the hill. When the motor started the defendant's wife got out on the running board of the car and went to the school house, and I got out, and she got under the wheel and went on and left. When John Woodward, Dennis Hodges, and the defendant's wife were pushing the car and I was at the wheel, the defendant walked back towards the store, towards the filling station. When they started to push the car off, he walked to Lehman Zetterower's store.' The witness further testified: 'I heard a conversation between L. A. Kennedy and his wife before Mrs. Kennedy left there in the car. She asked him to let's go home, and he refused to go, and I cranked it up and drove it off for her myself. When I walked back up to where Dennis and L. A. were, I did not hear anything particular said about starting the car. As his wife drove off with the car I don't know what L. A. Kennedy did, as at that time I was down to the schoolhouse with the rest of them. When his car cranked up I did not hear him say a word; he walked back to the store.'

Dennis Hodges testified that 'the reason why it was necessary to push that car off was that the starter would not pull it.' As to whether the defendant was present at that time, the witness did not see him. After the defendant's wife and children had gone, the witness and John Woodward walked to the latter's car, which was sitting in front of the filling station. As to what occurred at this time, the witness testified: 'He [John Woodward] started to get in the car on the left-hand side under the steering wheel, and I started to get in on the right-hand side, and just about four feet from the car L. A. came from the filling station (by L. A. I mean L. A. Kennedy), and struck John Woodward with a bottle--I do not know what kind of a bottle it was, and John Woodward staggered across the road. He was already across the road and went back of the car and had both of his hands like this [indicating hands holding head], and staggered into the weeds. * * * I did not see John Woodward any more that night after that. I turned and looked at L. A. Kennedy as he hit John, and John staggered by me, and then L. A. Kennedy started on to me with a bottle. I met him and we tusseled in the woods [weeds?] and the bottle struck me on this side of the head [indicating], and I hit him with my fist, and we went to the dirt, and then he struck me on the chin with the bottle. That lick made a sign on me; and there is the scar now [indicating]; it is there now, the same scar. After we got up Jessie Ballard came up and pulled L.A. Kennedy off, and L. A. said, 'Who gave you permission to push my car off?' I said 'Lewis Akins asked me to push it off.' We talked on, and he said, 'Are you satisfied about the fight?' and I told him, 'Whenever you get sober and my back gets well we will have the fight over.' He said, 'If you are not satisfied about it all right,' and we went together again for another fight. As we went down he got on top, and then we got up, and we were standing there talking and Lewis came up about that time, he came up from the direction of the wagon, and he said, 'L. A., I pushed your car, and what are you going to do about it? I cranked your car, and what are you going to do about it?' and he sort of laid his hands on L. A.'s shoulder and shoved, and about that time our wives [and others named] came up there, and my wife asked me how come I was bleeding, and about that time L. A. Kennedy turned and come off toward Robert Aldrich's filling station. * * * I did not see the defendant any more that night. I had no way of knowing about what time we all left there; it may have been 1 o'clock or may have been 2 o'clock. It was late in the night. * * * There had been no disturbance there that night between any of these folks before the car was pushed off, as I know of. There was no row between me and Woodward or between Akins and Woodward or Kennedy and Woodward until that time. It could not have been more than two or three minutes after the defendant's wife carried the car off with our assistance before he came up and hit Woodward and struck him; it was a short time. After I and the help I named pushed the car off I did not see Kennedy, the defendant, any more until he came to where we all were. He had not said anything to me from the time the car was moved until I said he struck John Woodward.'

On cross-examination the witness testified: 'As to whether I said that as John Woodward got hit he was on one side of John Woodward's car and John was on the other side, he was just going up to the back of the car, John Woodward was. I was on the right-hand side of the car; I was not quite to it; lacking about four feet. I was nearest to the right-hand back fender, and John was closest to the...