Kennemore v. State

• Decision Date: 05 January 1967
• Docket Number: No. 23835,23835
• Citation: 223 Ga. 41,153 S.E.2d 307
• Parties: Richard KENNEMORE v. The STATE.
• Court: Georgia Supreme Court

Page 307

153 S.E.2d 307

223 Ga. 41

Richard KENNEMORE v. The STATE.

No. 23835.

Supreme Court of Georgia.

Jan. 5, 1967.

Rehearing Denied Jan. 19, 1967.

Syllabus by the Court

1. The evidence was sufficient to sustain the verdict.

2. The court properly sustained the objection to the question seeking to elicit from the witness the opinion of other officers as to what caused skid marks as such evidence would be hearsay.

Reed & Dunn, Robert J. Reed, Gainesville, Hester & Hester, Frank B. Hester, Atlanta, for appellant.

Floyd G. Hoard, Sol. Gen., Davis & Davison, Jefferson, Arthur K. Bolton, Atty. Gen., G. Ernest Tidwell, Executive Asst. Atty. Gen., Carter A. Setliff, Asst. Atty. Gen., Atlanta, for appellee.

MOBLEY, Justice.

Richard Kennemore was indicted, tried, and convicted of the murder of Donald Marlowe with recommendation of mercy and sentenced to life imprisonment. He appealed therefrom and enumerates eight errors.

1. The first seven errors alleged are that the evidence was insufficient to support the verdict, and that the trial court erred in not directing a verdict of acquittal and in denying defendant's motion for judgment of acquittal notwithstanding the verdict.

We have carefully reviewed the evidence, which is entirely circumstantial, and will briefly recount that which is material. Donald Marlowe was found lying on the ground near his overturned 1963 white Corvari automobile just off the right side of U.S. Highway 129 in Jackson County at about 11 p.m. on February 27, 1965. His car was resting on its top and the wheels were still turning when the first witness arrived on the scene. He was still breathing but was dead a short time later when he arrived at the hospital in Gainesville. The doctor upon examining him found that he had a shotgun wound in the lower part of his left rib cage. It was his opinion that he had been shot at close range within two feet, and died from the shotgun wound within five minutes. Most of the bleeding was internal. It was not discovered that he had been shot until his body was examined at the hospital.

Shotgun pellets and wadding were dug out of the wound, which were identified as having come from a twelve gauge shotgun. The Corvair had a large hole just to the rear of the door on the left side which penetrated the outside shell of the automobile but not the inside, and around the hole were slight indentations, and pellets from a twelve-gauge shotgun were found behind the panel of the door. The top of the Corvair was caved in, and the left rear panel and left rear bumper were damaged; and there was white paint on the left rear bumper. The left rear tail light lens was broken. State Patrolman Angel, who arrived at the scene of the accident about an hour after it occurred, testified that the Corvair was white but was in the process of repair and had some gray primer paint and some maroon or red color on it in places. He described skid marks on the pavement, torn turf on the side of the road, debris, broken glass, and a small blood stain, and the damaged Corvair. From a break in the skid marks and other physical facts it was his opinion, based upon his vast experience in investigating automobile wrecks, that the Corvair had been struck from the rear on the left side by another vehicle and that the car was traveling in excess of seventy miles per hour. His opinion was that Marlowe was either thrown out of the car or crawled out after it turned over. The left rear window of the car was broken out and was large enough for a person to crawl through.

There was evidence that there had been ill feeling between the deceased and the defendant, Richard Kennemore, for two or three years; that the deceased had been taking defendant's wife out, had taken her to Florida on one occasion, and two days before the deceased was killed she and the defendant had been to a lawyer to discuss divorce proceedings and a trial separation was agreed upon. It appeared that the defendant had not been at home with her either night since. Two witnesses testified that within three or four weeks or more before February 27th, the defendant rode by the filling station where Marlowe was working and 'hollered' to him: 'I'm going to kill you, you God damn son of a bitch.' And Marlowe told Larry Smith on Friday before he was killed on Saturday that defendant had called him that day and threatened to kill him.

Charles Hendrixson testified that around noon on February 27, 1965, defendant borrowed a Pontiac from him, but brought it back in a few minutes saying it wasn't much automobile. He then let him have a Volkswagen, which he brought back Monday afternoon. It had a bad headlight.

John Howard Keesler testified that his wife was the aunt of defendant, and of William Kennemore and Lawrence Kennemore; that Richard Kennemore came by his house about 7 or 7:30 p.m. on February 27, 1965, and was driving his white Corvair and stayed about thirty minutes; that William Kennemore came by about thirty minutes after Richard Kennemore left, and William left driving Keesler's white Valiant; that he said he had a date, and that the Volkswagen just had one light, so he loaned him his Valiant. William came in a little after 11 p.m. that night. The next morning, Keesler drove the Valiant to his father's house, and left it there, and drove away from there in a '52 Plymouth. The Valiant was left at the edge of the driveway at the rear of the lot. When the officers came to look at it he noticed it was damaged on the right front, and said that he hit the Valiant with the Plymouth-which was after William had returned it. It was not damaged when loaned to William. He testified that when he hit the Valiant it bent the bumper, fender and broke the headlight on the right front of it.

Henry Smith testified that Evelyn, Kennemore's wife, lives one and 1/2 blocks from him in Gainesville, and about 9 p.m. on February 27th, 1965, he saw a car parked in front of his house; that he went out to see who it was and found Richard Kennemore in the car, a white Valiant, and there was someone with him whom he didn't know; that Richard told him he was watching his mother-in-law's house for his wife who was there; that he stayed out there four or five minutes and returned to the house.

Larry Smith testified that Don Marlowe was at the filling station which he operates until 10:30-10:40 p.m. on February 27, 1965, when he left in his white Corvair and he had Tony Porter with him, whom he was to take home. He also testified that there was a lot of tension between Richard and Don during the thirty days before Donald was killed; and that for more than two years they had been having trouble; on one occasion Donald had beaten up Richard and on another occasion Richard had shot up Donald's car and had put a cocked pistol to his...