Kimball v. State

• Decision Date: 16 July 1940
• Docket Number: 28215.
• Parties: KIMBALL v. STATE.
• Court: Georgia Court of Appeals

10 S.E.2d 240

63 Ga.App. 183

KIMBALL v. STATE.

No. 28215.

Court of Appeals of Georgia, Division No. 1.

July 16, 1940

Rehearing Denied July 30, 1940.

Syllabus by the Court.

D E. Griffin, of Fitzgerald, for plaintiff in error.

W S. Mann, of McRae, and Allan C. Garden, Sol. Gen., of Fitzgerald, for defendant in error.

MacINTYRE Judge.

The defendant was charged with murder and was convicted of involuntary manslaughter in the commission of an unlawful act. The defendant's motion for new trial as amended was overruled and he excepted.

It appears from the evidence that W. A. Gibbs, his son, Marcus Gibbs, John Allen Dozier, Horace Jennings, and Sam Fitzgerald congregated in Rochelle and all came together in Sam Fitzgerald's Ford coupe to Fitzgerald to visit various drinking joints, clubhouses and the fair. That they met the late George C. Wilcox, a relative and friend, at the fair that all had been drinking except perhaps Horace Jennings. That all five with the addition of said George C. Wilcox, the one whom said Vaud Kimball is charged with having murdered, got into the Ford coupe which was of one seat only and the "turtle", and said George C. Wilcox doing the driving, went to the Hi Hat, a roadhouse near the city of Fitzgerald. The defendant, who had been drinking, was already in said roadhouse on the left side of the door sitting on a bench. There were two girls in said roadhouse who were entertainers for the house. That said George C. Wilcox danced with one of these girls called "Gasoline." That after she and said George C. Wilcox had finished the dance she strolled by Vaud Kimball, the defendant, who was sitting on the bench and he playfully slapped her on the buttocks, and she slapped him. Wilcox then went over to the bench where the defendant was sitting and remonstrated with him for having slapped said "Gasoline" and cursed the defendant, and the defendant struck Wilcox with his fist and they both went down on the floor in front of the bench lying practically crosswise of each other. They were immediately separated by Marcus Gibbs, John Dozier and Homer L. Bass, operator of the Hi Hat. There were no weapons of any kind or character used, or in the hands of either Wilcox or the defendant. This happened on November 5, 1938, about 10:30 or 11 o'clock, P. M. It further appears that George Wilcox, at midnight, drove the car to his home. W. A. Gibbs and Sam Fitzgerald accompanied him to bring the car back. On November 14, 1938, Wilcox had a partial stroke of paralysis. On the next day, November

15, 1938, Dr. Luke, not a practicing physician, but one who had retired some two or three years before, was called in to see Wilcox, and on November 19, 1938, Wilcox walked one-half mile or more to the place of business, that is, the automobile sales business operated by Dr. Luke and his son, to see Dr. Luke. On November 27, 1938, Wilcox suffered another stroke and at the instance of the defendant and his wife other doctors were called in to examine and treat the deceased, Wilcox. Wilcox died on December 2, 1938, of pneumonia.

1. Both the fourth and thirteenth grounds of the amended motion for new trial complained of the admission of certain testimony. It is stated in each of these grounds that the evidence was admitted over the objection of movant, but it clearly appears from the grounds themselves and from the notations made by the court in each of these grounds that no objection was made to the questions as finally propounded and the answers given. One of the essentials of a valid assignment of error complaining of the admission of evidence is that it must affirmatively appear that specific objections were made at the time it was offered. This court sits to review the rulings of the trial courts, and where a ruling has not been made by the trial court, this court will not pass upon such questions. Bourquin v. Bourquin, 110 Ga. 440, 442, 35 S.E. 710; Smith v. State, 23 Ga.App. 76, 97 S.E. 454. There is no special ground numbered 5.

2. The sixth ground of the amended motion for new trial assigns error upon the overruling of an objection to a lengthy hypothetical question propounded on cross-examination to a physician offered as a witness for the defendant. Both the question and the answer are lengthy and for sake of brevity will not be set forth. The objection made to the hypothetical question was "that it is purely a hypothetical question and is not admittible." The question propounded to the witness was a proper question since it was couched in hypothetical form and was adjusted to the facts which had already been proven in the case. The answer of the witness simply corroborated the testimony of the State's expert witnesses regarding the symptoms developed by the deceased and the conclusions reached by the experts. The witness was a doctor offered as an expert by the defendant and was one who had never seen the deceased in his professional capacity. Code, § 38-1710, provides that "The opinions of experts, on any question of science, skill, trade, or like questions, shall always be admissible; and such opinions may be given on the facts as proved by other witnesses." Furthermore, the Supreme Court in the case of Southern Bell Tel. & Tel. Co. v. Jordan, 87 Ga. 69(3), 13 S.E. 202, 203 has held that "The proper mode of examining a physician or expert, where he is not testifying from his own knowledge, is to ask him hypothetical questions." The other objection offered to the question propounded was that the evidence was inadmissible. Such an objection does not form the basis of an adequate assignment of error. McDonald v. State, 21 Ga.App. 125(6), 94 S.E. 262.

3. In special grounds 7 and 8 of the amended motion it is shown that an objection was made to certain testimony of the witnesses, W. A. Gibbs and George Crawford, on the ground that it was hearsay and that the court sustained the objection and stated that he would rule out anything that the witness did not see himself. Complaint is made of the failure of the court to instruct the jury that they should disregard the testimony so ruled out. There was no request for additional instruction, at the time the objections were made. This ground is not meritorious. The failure of the court to instruct the jury to disregard the testimony which had been ruled out was not error, in the absence of a timely request, for the court to fail to instruct the jury that they were to disregard the testimony ruled out. Annunciatio v. State, 176 Ga. 787(2), 169 S.E. 3; Wheeler v. State, 23 Ga. 292(1).

4. The ninth ground of the amended motion for new trial assigns error upon a ruling of the court sustaining an objection to certain evidence on the ground that it was hearsay. The defendant offered the testimony of J. W. Henderson with reference to a conversation which Henderson, a defendant witness, had with the deceased, George C. Wilcox, some year and a half prior to the death of Wilcox and following an operation for appendicitis performed on Wilcox by Dr. Coleman in Eastman. The purpose of the question was to offer in evidence the statement of Wilcox that Dr. Coleman told him that if he ever took another drink or two of liquor it would kill him. The evidence offered was clearly hearsay and hearsay testimony is generally inadmissible. Code, § 38-301. Testimony or evidence as to the conversation should properly be excluded as hearsay. Chedel v. Mooney, 158 Ga. 297(7), 123 S.E. 300; Rocker v. DeLoach, 178 Ga. 480, 485, 173 S.E. 709.

5. Special grounds 10 and 11 complain of the ruling of the court in allowing certain questions to be propounded to the State's witness over the objection that the questions were leading. It is a matter entirely within the discretion of the trial court as to whether or not counsel should be permitted to ask leading questions. Higdon v. Williamson, 140 Ga. 187(3), 78 S.E. 767. Since it is within the sound discretion of the court to permit counsel to propound leading questions to a witness and there being no abuse of discretion in this case, no reason for the grant of a new trial on that ground appears. Beaudrot v. State, 126 Ga. 579(1), 55 S.E. 592.

6. The fourteenth ground of the amended motion assigns error upon a portion of the charge of the court in which the court was stating the contentions of the State. The portion of the charge excepted to is the following statement: "that the deceased suffered immediately from that blow a partial paralysis," (italics ours) it being contended that this was erroneous and harmful because the State did not contend that there was an immediate paralysis. If this statement of the court was inaccurate it was immaterial and was certainly harmless. The controlling issues in the case, including the contentions of both parties, were adequately and properly submitted. "Instructions to a jury, even if not in all respects correct, afford no cause for a new trial when they are manifestly harmless to the complaining party." Martin v. Gibbons, 14 Ga.App. 136(1), 80 S.E. 522; Williams v. State, 180 Ga. 595(3), 180 S.E. 101. See also Faries v. Central of Georgia Ry. Co., 19 Ga.App. 121, 91 S.E. 241.

7. In special ground 15 of the amended motion for new trial error is assigned upon the excerpt from the charge of the court which instructed the jury that if they were satisfied that the defendant was guilty of some offense and entertained a reasonable doubt as to what he was guilty of they should resolve it in his favor and find him guilty of the lesser offense. The excerpt of the charge complained of is in effect the same as a charge given in the case of Simpson v. State, 12 Ga.App. 292 (4), 77 S.E. 105, and is applicable to the case at bar. There is no merit in this ground.

8. The excerpt of the charge complained of in special ground 16 is...