Lee v. State

• Decision Date: 08 April 1981
• Docket Number: No. 37090,37090
• Citation: 247 Ga. 411,276 S.E.2d 590
• Parties: LEE v. The STATE.
• Court: Georgia Supreme Court

Page 590

276 S.E.2d 590

247 Ga. 411

LEE v. The STATE.

No. 37090.

Supreme Court of Georgia.

April 8, 1981.

Joseph P. MacNabb, Newnan, for James M. Lee.

William F. Lee, Dist. Atty., Newnan, Arthur K. Bolton, Atty. Gen., for the State.

JORDAN, Chief Justice.

James M. Lee, appellant, was convicted of the murder of his wife, Emily Lee, and sentenced to life imprisonment. He appeals. We affirm.

1. The appellant argues that the trial court erroneously admitted into evidence, over a hearsay objection, the following testimony of his wife's daughter by a former marriage: Q. (D)id you have ... a conversation with (your mother) between the hours of six and eight o'clock that night? A. Yes, she called me and she was very upset."

Even if the daughter's testimony were hearsay, we hold it highly probable that the error was harmless because the appellant also testified that his wife was upset the night of her death. See Johnson v. State, 238 Ga. 59, 61, 230 S.E.2d 869 (1976).

2. The appellant argues that the trial court erred in admitting into evidence four inflammatory photographs of the victim's body because said photographs were cumulative of two other photographs of the victim's body which had already been received into evidence.

The four photographs "were relevant to the issues in the case ... and the fact that they were somewhat repetitive ... will not alone rule them out. The trial court did not err in admitting these photographs." Mooney v. State, 243 Ga. 373, 394, 254 S.E.2d 337 (1979).

3. The appellant argues that the trial court erred in instructing the jury to disregard the statement of the appellant's attorney, during final argument, that, the state had recommended, at the appellant's preliminary hearing, "that the murder charges not be brought."

The statement of the appellant's attorney was an assertion of fact, and the record establishes that no evidence of said fact had been introduced at trial.

The present enumeration of error is without merit. Taylor v. State, 121 Ga. 348, 354, 49 S.E. 303 (1904).

4. The appellant argues that the trial court erred because the trial court's charge failed to expressly instruct the jury that malice is an essential element of the crime of murder.

The trial court charged the jury that "a person commits murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being."

This enumeration of error is without merit.

5. The appellant argues that the trial court erred by not instructing the jury that, in determining whether the appellant was guilty beyond a reasonable doubt, the jury should consider only those items of circumstantial evidence which are proved.

The trial court charged the jury that "Circumstantial evidence is that which tends to establish the issue by proof of various facts and circumstances sustaining by their consistency the hypothesis claimed. Before you would be authorized to convict this defendant on circumstantial evidence alone, the proven facts must not be only consistent with the hypothesis of guilt, but must exclude every other reasonable hypothesis, save that of the guilt of the accused."

This enumeration of error is without merit.

6. The appellant argues that the trial court erred in denying his motion for a directed verdict of not guilty.

A trial court must grant a motion for directed verdict unless, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1978).

The appellant admitted that he shot and killed his wife with a shotgun on the evening of February 17, 1979; he contended, however, that the shotgun had accidentally fired while he was cleaning the gun.

Regarding the issue of accidental versus intentional firing, the evidence authorized the jury to find the following facts:

The appellant and his wife had experienced marital difficulties, and the appellant had almost thrown his wife out of their home because of her constant threats of divorce. On the evening of Feb. 17, 1979, the appellant had drunk five or six beers and had taken one five-milligram tablet of valium.

During a 31 year period, the appellant had owned over 300 guns, and, at one time, had worked in a pawn shop buying, selling (and evaluating) guns...