Littles v. State, 30514
| Decision Date | 06 April 1976 |
| Docket Number | No. 30514,30514 |
| Citation | 236 Ga. 651,224 S.E.2d 918 |
| Parties | Charles LITTLES v. The STATE. |
| Court | Georgia Supreme Court |
David G. Kopp, Union Point, for appellant.
Joseph H. Briley, Dist. Atty., Gray, Arthur K. Bolton, Atty. Gen., Lois F. Oakley, Staff Atty. Gen., Atlanta, for appellee.
Charles Littles was convicted of the murder of Mary Virginia Reid and sentenced to life imprisonment. He appeals from his conviction and sentence.
1. The appellant contends that the court erred in overruling his motion to quash the indictment against him.
( a) The first ground of the motion is that the indictment fails to indicate the weapon or weapons with which the victim was shot.
The indictment is on a printed form. The space for indicating the type of weapon used in shooting the victim is blank, and the word 'pistol' appears after the name of the victim. It is obvious that this was a clerical error. Both the appellant in preparing the case, and the jury in considering the indictment, would know that the appellant was charged with shooting the victim with a pistol. It was not error to overrule this ground of the motion to quash.
( b) The other ground of the motion is that the indictment fails to allege that the appellant's actions were 'contrary to the laws of Georgia.'
Code § 27-701 prescribes the form of every indictment by a grand jury. After describing the offense, the form contains the words: 'contrary to the laws of said State, the good order, peace, and dignity thereof.' The present indictment does not contain these words in the exact language of Code § 27-701.
The appellant relies on Hardin v. State, 106 Ga. 384, 32 S.E. 365 (1898), which held that an indictment entirely omitting the words prescribed by statute, 'contrary to the laws of said State, the good order, peace, and dignity thereof,' (Penal Code of 1895, § 929), was defective, and that a special demurrer thereto because of this defect should be sustained. The present Code § 27-701 is the same as § 929 of the Penal Code of 1895.
While we do not condone the failure of the District Attorney in Greene County to use the form of indictment specified by Code § 27-701, the present indictment contains substitutionary words which have the same effect as the words in the statute. The indictment charges that the appellant 'in the peace of God and said State then and there being, then and there unlawfully feloniously, wilfully and with malice aforethought, did kill and murder, etc.' In view of these substitutionary words, we hold that the trial judge did not err in overruling this ground of the motion to quash the indictment.
2. The appellant contends that the court erred in allowing in evidence as a part of the res gestae, over objection, the testimony of the State's witnesses Miller and Wind concerning statements of the victim in which she named her assailant.
These witnesses saw the victim when she was lying near the edge of the road, calling for help, after she had been shot in the head. The witness Miller estimated that the time was ten to fifteen minutes after he had heard two shots. The witness Wind saw the victim prior to this time, and informed Miller of her plight. The circumstances related by these witnesses indicated that the victim's statements were spontaneous, made shortly after the occurrence, while she was in a critical condition from her wounds, and at a time when she was primarily concerned with obtaining assistance. The fact that some of the statements were in reply to questions of the witnesses would not render them inadmissible. Turner v. State, 212 Ga. 199, 91 S.E.2d 501 (1956); Haralson v. State, 234 Ga. 406(3), 216 S.E.2d 304 (1975).
It was not error to allow the statements in evidence as part of the res gestae.
3. The appellant asserts that the court erred in admitting testimony of Sheriff Wyatt in which she related statements made by the victim at a committal hearing on October 29, 1974, wherein the committing court was investigating a charge against the appellant of aggravated assault by shooting the victim.
The sheriff testified that the appellant and his attorney were present at the hearing, and that the victim was cross examined by the appellant's attorney. He stated that the proceedings were not reported by a court reporter, and that he recalled the substance of the victim's testimony. He related the victim's testimony concerning the shooting incident, and her identification of the appellant as the one who shot her. Objection was made to this testimony on the ground that it was hearsay, and that the committal hearing should have been reported.
Code § 38-314 () provides: 'The testimony of a witness, since deceased, . . . given under oath on a former trial, upon substantially the same issue and between substantially the same parties, may be proved by anyone who heard it, and who professes to remember the substance of the entire testimony as to the particular matter about which he testifies.'
This statute has been applied to testimony at a committal hearing. Robinson v. State, ...
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