Lindsey v. State, 50756

• Decision Date: 13 June 1975
• Docket Number: No. 3,No. 50756,50756,3
• Parties: Frank LINDSEY v. The STATE
• Court: Georgia Court of Appeals

Page 30

218 S.E.2d 30

135 Ga.App. 122

Frank LINDSEY v. The STATE.

No. 50756.

Court of Appeals of Georgia, Division No. 3.

June 13, 1975.

K. Reid Berglund, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., R. David Petersen, Isaac Jenrette, Joseph Drolet, Asst. Dist. Attys., Atlanta, for appellee.

DEEN, Presiding Judge.

1. The evidence in this case shows that shortly before the homicide of the defendant's wife he came to a neighbor's home, shotgun in hand, and asked whether she had heard a shot; shortly thereafter there was a gun blast. Another neighbor testified that the defendant had come to his house, complained that his wife had thrown him out along with the gun, and added, 'I guess I'll have to go and kill her.' A third witness testified that the defendant had made the same statement a few days previously. The wife was found dead with what appeared to be a shotgun wound in her neck. This and other evidence, while it would also have supported a verdict of guilty of murder, the crime charged, also supports a finding of manslaughter. The general grounds of the motion are without merit.

2. Appellant contends that he was unfairly led into stating on cross examination that he loved his wife and would do nothing to hurt her, which testimony was used as a basis for introducing in evidence a prior plea of guilty of assault with intent to murder the same wife. Prior attempts to commit the same crime on the same victim are generally admissible. Wright v. State, 184 Ga. 62(8), 190 S.E. 663; Cawthon v. State, 119 Ga. 395, 409, 46 S.E. 897. The defendant voluntarily took the stand and exposed himself to a thorough and sifting cross examination. 'Wherever the purpose is to impeach or discredit the witness, great latitude should be allowed.' Mitchell v. State, 71 Ga. 128(6). Malice was one of the ingredients of the offense charged; the State had the right to inquire of him whether he held malice against his wife, and, if he chose to lie, to offer relevant evidence to contradict him. A plea of guilty to attempted murder is high evidence of such malice. It was not error to admit the record of the prior conviction.

3. 'Where the jury are unable to recall the evidence, counsel for each side may state their recollection of the evidence, and the judge may instruct the jury to decide what was the evidence as best they can from their recollection as refreshed by the statement of counsel.' Strickland v. State, 115 Ga. 222, 227, 41 S.E. 713, 715. See also Swint v. State, 203 Ga. 430, 431, 47 S.E.2d 65; Green v. State, 122 Ga. 169(1), 50 S.E. 53. Where the jury returned after consideration of the case with a request of clarification of the time element of certain events, the court offered either to have the court stenographer read back this evidence or to allow the attorneys to give their recollection of it. The attorneys chose the latter method, and both agreed as to the...