Kimball v. State
| Decision Date | 16 July 1940 |
| Docket Number | No. 28215.,28215. |
| Citation | 10 S.E.2d. 240 |
| Parties | KIMBALL. v. STATE. |
| Court | Georgia Court of Appeals |
Rehearing Denied July 30, 1940.
Syllabus by the Court.
1. 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.
2. "The proper mode of examining a physician or expert, where he is not testifying from his own knowledge, is to ask him hypothetical questions."
3. The failure of the court to instruct the jury to disregard testimony which has 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.
4. The evidence offered, being that of a conversation, was clearly hearsay and was therefore inadmissible.
5. 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.
6. "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."
7. 8. The judge did not err in charging the jury as he did in the excerpts complained of in special grounds 15 and 16.
9. The defendant being convicted of manslaughter, the excerpt of the charge complained of in special ground 17, if erroneous, could not have been the basis of a new trial since it related to malice (an element of murder) and the defendant was not harmed thereby.
10. An erroneous charge upon the subject of higher offenses is not cause for a new trial where the verdict is for a lesser offense.
11. The excerpt from the charge complained of in special ground 19 of the motion for new trial contains correct abstract principles of law which are applicable to the indictment and the evidence introduced, and is not erroneous for the reasons assigned.
12. The judge did not err in charging the jury in effect in the language of Code, § 26-1012, which provides "A bare fear of any of those offenses, to prevent which the homicide is alleged to have been committed, shall be sufficient to excite the fears of a reasonable man, and that the party killing really acted under the influence of those fears, and not In a spirit of revenge."
13. Under the evidence in this case, the judge did not err in failing to charge on involuntary manslaughter In the commission of a lawful act without due caution and circumspection.
14. The judge did not err in failing to charge on the crime of assault and battery, for, generally speaking, where evidence is that the deceased was struck by the defendant and the death resulted from that blow delivered without justification and there is no evidence of any other cause of the death, this proves a completed crime of murder or manslaughter, and the lesser offense of as-sault and battery is merged In the greater. The evidence in this case, if credible, proves the completed offense of murder or manslaughter or of innocence.
15. Where the verdict was for "involuntary manslaughter, " the effect of such a verdict is to find the defendant guilty of the highest degree of involuntary manslaughter.
16. "Applications for new trial upon the ground of newly discovered evidence are addressed to the sound discretion of the trial judge, and the refusal to grant a new trial on that ground will not be reversed unless his discretion is abused."
17. The evidence authorized the verdict.
Error from Superior Court, Ben Hill County; O. T. Gower, Judge.
Vaud Kimball was convicted of involuntary manslaughter, in the commission of an unlawful act, and he brings error.
Affirmed.
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.
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 road-house 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 uponsuch 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 admit-tible." 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...
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