Kilgore v. State, 36620
| Decision Date | 02 April 1957 |
| Docket Number | No. 2,No. 36620,36620,2 |
| Citation | 98 S.E.2d 72,95 Ga.App. 462 |
| Parties | J. L. KILGORE v. The STATE |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. It was not error to allow testimony relating to previous acts of ill treatment for the purpose of showing malice on the part of the defendant husband who was on trial for the murder of his wife, for reasons set forth in the corresponding division of the opinion.
2. That the State failed to call to the witness stand a person who had been subpoenaed was not ground for a new trial.
3. On a trial for murder the burden is upon the State to show beyond a reasonable doubt, not only that the accused inflicted a blow upon the deceased under such circumstances that if death ensued the accused would be guilty of murder, but also it must be shown beyond a reasonable doubt that death actually resulted from or was materially accelerated by the blow. Where, as here, the victim was suffering from a disease which would and probably did (according to the medical testimony) cause her death, whether or not the effect of the defendant's blows upon her person materially accelerated the death because of the diseased condition of the brain, upon which one of the blows was inflicted, is a medical question on which it would be impossible for a lay person to form an opinion without being guided by medical testimony, the blow inflicted being of a kind which would not under ordinary circumstances cause death unless because of its unfavorable reaction upon the diseased condition. Under such circumstances, where two medical witnesses testified on the trial of the case, but one failed to testify as to the effect of the blow, and the other testified that it would be impossible for him to state what the cause of death was, there is insufficient evidence to support a jury finding either that the subsequent death was the direct result of the act of the defendant, or that it was accelerated thereby.
J. L. Kilgore was indicted in the Superior Court of Carroll County for the murder of his wife, and was convicted of involuntary manslaughter. On the trial it appeared that the wife died on Wednesday, May 16, 1956. On the previous Friday the defendant had hit her on the top of her head with a stick about a foot long, knocking her almost but not entirely senseless. On Sunday he hit her in the fact several times with his hand or fist. On Tuesday the defendant and his wife went fishing, and she fell into the water, and he hit her across the back with a fishpole. Later he was seen coming back to the house with her in a truck, at which time he struck her several times around the neck and shoulders. During this time she was a sick woman, subject to dizzy spells and hypertension, and frequently fell down. The defendant in his statement told how, on that same afternoon, his wife had attempted to go back to the house by herself, and had fallen and become mired in the lake mud for a period of time, and that he finally found her there. Tuesday evening she was taken to the hospital, where she died the next day. The autopsy revealed superficial injuries to the nose and cheek, and a bruised area on the top of the head extending down to the outside of the skull. The deceased was suffering from a brain tumor about two inches in diameter embedded in the right frontal lobe of the brain, as revealed by autopsy. No other injuries or abnormality were found.
Following the verdict of guilty of involuntary manslaughter, the defendant moved for a new trial on the general grounds and an amendment containing 7 special grounds. The denial of this motion is assigned as error.
Shirley C. Boykin, R. D. Tisinger, Carrollton, for plaintiff in error.
Wright Lipford, Sol. Gen., Newman, Earl Staples, Robert Brown, Carrollton, for defendant in error.
1. Special grounds 1, 2, 3 and 4 complain of the admission of evidence relating to the ill treatment by the defendant of his wife. Most of the testimony related to acts within a week of her death, but some of the testimony showed that the defendant had habitually ill treated his wife over a period of years. Such evidence, if not too remote, is admissible to show malice and motive, and to rebut the presumed improbability of a husband murdering his wife. Parker v. State, 197 Ga. 340 (6), 29 S.E.2d 61. And while ordinarily evidence relating back over a period of years has little, if any, probative value, yet under the facts of this case, where a consistent habit of ill treatment is shown over a long period of time none of the acts testified to were too remote to be admitted in evidence. See Josey v. State, 137 Ga. 769 (1), 74 S.E. 282. These grounds are without merit.
2. Since there is no law requiring a party to litigation to call to the stand every person to whom a subpoena has been issued, there is no merit in special ground 5, complaining that after the State had subpoenaed a medical witness it failed to use him.
3. Special ground 6, contending that there was insufficient evidence of one of...
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Welch v. State
...bear factual resemblance to that presented by the evidence here: Stevens v. United States (D.C.App.), 249 A.2d 514; Kilgore v. State (Ga.App.), 95 Ga.App. 462, 98 S.E.2d 72; State v. Everett (N.C.), 194 N.C. 442, 140 S.E. 22; State v. Bynum (Ohio App.), 69 Ohio App. 317, 43 N.E.2d 636; Comm......
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In the Interest of Q.S., a Child.
...442(1), 583 S.E.2d 151 (2003) (no evidence that gunshot to arm caused victim to lose use of his legs); see also Kilgore v. State, 95 Ga.App. 462, 465–467(3), 98 S.E.2d 72 (1957) (insufficient evidence that blow to head, as opposed to brain tumor, caused death of victim). We, therefore, reve......
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Lord v. State, 69145
...250 Ga. 655, 300 S.E.2d 492 (1983); Martin v. State, 102 Ga.App. 216, 219-221(4), 115 S.E.2d 859 (1960). Compare Kilgore v. State, 95 Ga.App. 462, 464(3), 98 S.E.2d 72 (1957). Moreover, the evidence also authorized a finding beyond a reasonable doubt that appellant was guilty as a party to ......
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...that death resulted from natural causes. Langston v. State, 151 Ga. 388, 106 S.E. 903; Lee v. State, 76 Ga. 498. In Kilgore v. State, 95 Ga.App. 462, 98 S.E.2d 72 conviction was reversed where the only medical witness stated that it was impossible for him to say whether death resulted from ......