Martin v. State, 38389

• Decision Date: 15 July 1960
• Docket Number: No. 38389,No. 2,38389,2
• Parties: C. R. MARTIN v. STATE
• Court: Georgia Court of Appeals

Page 859

115 S.E.2d 859

102 Ga.App. 216

C. R. MARTIN v. STATE.

No. 38389.

Court of Appeals of Georgia, Division No. 2.

July 15, 1960.

Syllabus by the Court

1. The testimony of a witness that he heard another person confess to the crime for which the defendant is on trial is hearsay and inadmissible.

2. Where a witness for the State on direct examination did not testify to any conversation with the defendant, it is not reversible error for the court to disallow testimony on cross-examination that the defendant stated on the afternoon of the following day, when first interrogated, that he was not the driver of the automobile in question, it not being shown that such statement was a part of the res gestae, or that it was made immediately upon the defendant recovering consciousness and before he had an opportunity of considering his position, or talking with other persons present in the room at the time the witness arrived. The testimony was objectionable as being a self-serving declaration.

3. Where the undisputed evidence was to the effect that the automobile allegedly driven by the defendant was partly on its left-hand side of the road at the time of the collision, and there was no evidence from which an inference would be authorized that it might have been in its left-hand traffic lane under one of the authorized exceptions to Code § 68-1633 requiring automobiles generally to be operated in the right traffic lane, it was not error for the court to fail to charge the exceptions to Code § 68-1633.

4. The evidence was sufficient to authorize a finding that the defendant was the driver of the automobile which inflicted the fatal injuries; that such actomobile was being operated at the time in violation of law, and that the injuries received were the proximate cause of the death of the victim for whose homicide he was on trial.

Cecil Martin was charged in the Superior Court of Forsyth County with the offense of murder growing out of the death of O. G. Seabolt in an automobile collision, and was convicted of involuntary manslaughter. On the trial of the case the evidence was to the effect that an automobile owned by Gerald Carnes of which Carnes and the defendant were the only occupants crashed head-on into the Seabolt car, which was proceeding on its own side of the road at the time; that witnesses arrived within a few minutes and found the occupants of both cars badly injured; that the left door of the Carnes automobile was jammed, the defendant was sitting slumped over under the steering wheel, inconscious, and with one leg and foot entangled in the brake and accelerator pedals; that Carnes was on the right side of the front seat; that the injury occurred between 11 and 11:30 p. m. and it was first thought that the defendant was dead; that examination on arrival at the hospital showed both of them to have sustained pelvic injuries and that the defendant also had a fractured leg. O. G. Seabolt, the driver of the other automobile, sustained chest injuries and died some nine days later in the hospital. The defendant in his statement contended that Carnes and not he was driving the car at the time of the collision; that Carnes dimmed his lights for the approaching Seabolt car and they went out, and that because of this Carnes crossed the center line of the road into the path of oncoming traffic. Witnesses who extricated the victims from the automobiles smelled liquor on Carnes and the defendant; there was a partly empty bottle of liquor in the automobile, and the defendant said in his statement to the jury that he and his companion had taken two drinks each from the bottle.

The defendant's motion for new trial as amended was denied and he assigns error on this judgment.

Jess H. Watson, Leon Boling, Cumming, for plaintiff in error.

Sam P. Burtz, Solicitor-General, Thomas A. Roach, Canton, for defendant in error.

TOWNSEND, Judge.

1. Error is assigned on the rejection of testimony by three witnesses that after the injured had been conveyed to the hospital, at a period of time some thirty minutes or so after the collision, Gerald Carnes, who thought his unconscious companion was in fact dead, said, 'I killed Cecil.' Carnes was not offered on the trial as a witness by either side, not was his absence explained. It is, however, a general rule that testimony of a witness that he heard another confess to the crime is inadmissible as hearsay (Daniel v. State, 65 Ga. 199(1); Robinson v. State, 114 Ga. 445(2), 40 S.E. 253; Lyon v. State, 22 Ga. 399(1)) and this is true althought the person making the confession is since deceased. Green v. State, 153 Ga. 215(2), 111 S.E. 916.

The statement was not a part of the res gestae of the collision. Carnes was conscious when he was removed from the automobile and talked with one of the witnesses about the collision, but did not make the statement in question until some time from thirty minutes to over an hour later after he had been conveyed to the hospital. It is impossible to tell whether the statement was made immediately upon Carnes' first receiving the impression that the defendant was dead, but the defendant was not in fact dead, and the expression was cryptic and susceptible to a construction that Carnes felt himself morally responsible for the death in allowing the defendant to drive the automobile when the defendant had no license to drive. There is no merit in special grounds 2, 3 and 4 of the amended motion for new trial.

2. Error is assigned on the refusal to allow a state trooper who investigated the collision to answer the question: 'And you asked him who was driving?' It appears that the defendant suffered a cerebral concussion and remained unconscious for a number of hours; that at about 2 the following afternoon the trooper went to the hospital room and found the defendant, his sister, Carnes, and two of Carnes'...