McDaniel v. State
| Decision Date | 08 June 1944 |
| Docket Number | 14865. |
| Citation | 30 S.E.2d 612,197 Ga. 757 |
| Parties | McDANIEL v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. The evidence was sufficient to authorize the verdict finding the defendant guilty of murder.
2. The exhibition to the jury of wounds received by a witness by being cut with a knife by the defendant shortly before he fatally stabbed the deceased with the same knife, the evidence being offered for the purpose of showing the extent of the wounds, and the admission of testimony by a physician as to the extent of such wounds, did not constitute error merely on the ground that such evidence was irrelevant and immaterial.
(a) A specific valid objection showing harmful error must be made at the time the evidence is presented, and it is too late to set forth for the first time in a ground of a motion for new trial an objection, even though valid.
3. 'In order to reduce a homicide from murder to voluntary manslaughter, on the theory of mutual combat, it should affirmatively appear that at the time of the homicide both parties were in position and manifested an intention to fight.'
(a) There being no evidence showing mutual combat, the court did not err in failing to charge the law of voluntary manslaughter as related to mutual combat.
4. The failure to charge a principle of law contended to be pertinent and applicable to the facts of the case can not be taken advantage of by assigning error upon a charge that is abstractly correct.
(a) In the absence of a special request to charge, the court did not err in failing to define the expression 'other equivalent circumstances,' as used in the Code, § 26-1007, in defining voluntary manslaughter.
Robert McDaniel was convicted of murder, and upon a recommendation of mercy by the jury was sentenced to life imprisonment. The evidence for the State showed that the deceased victim, Joe Hart, was sitting on a bench at a place in Sumter County near Americus, Georgia, known as the Cotton Club, while an altercation was taking place between his cousin, Junior Hart, and two brothers, Wesley McDaniel and the defendant; that the defendant had cut Junior Hart very severely and that the latter jerked loose from them and sought to escape; that the defendant immediately pursued him with his knife in his hand, and when some one nearby called to Joe Hart, telling him that the McDaniel brothers were after him, he attempted to run away from the scene but was overtaken by the defendant and stabbed to death. The evidence for the defendant, together with his statement, was to the effect that the deceased was attempting to shoot Wesley McDaniel while the latter and Junior Hart were engaged in a fight; that the deceased had fired one shot from his pistol, and when Robert McDaniel was informed by some one that the deceased and his cousin, Junior Hart, were about to kill his brother, Wesley McDaniel, the defendant rushed up to the combatants and asked Joe Hart not to shoot the defendant's brother, whereupon Joe Hart wheeled around, shot at the defendant, and was again about to do so when the defendant inflicted a mortal wound upon him with a switch blade knife about four inches long. The evidence for the defendant and his statement showed that, instead of Junior Hart running away after being cut, as testified by the State's witnesses, he jumped upon the defendant's back when the latter rushed to the spot where Wesley McDaniel was being attacked, and that Junior Hart was cut after the defendant had inflicted a mortal wound upon Joe Hart.
The defendant's motion for a new trial, consisting of the usual general grounds and several special grounds, was overruled, and the exception here is to that judgment.
R. L. Le Sueur, of Americus, for plaintiff in error.
E. L. Forrester, Sol. Gen., of Leesburg, and T. Grady Head, Atty. Gen., and Victor Davidson, Asst. Atty. Gen., for defendant in error.
1. The evidence authorized the verdict, and the court did not err in overruling the general grounds of the motion for new trial.
2. Special ground 1 of the motion complains that the court erred in allowing the State's witness, Junior Hart, during the trial of the case to pull off his shirt, and immediately in front of the jury exhibit certain knife wounds which he testified had been inflicted by the defendant at the Cotton Club shortly before the time the deceased was fatally stabbed by the defendant. Special ground 2 assigns error on the admission of testimony by a physician as to the extent of the wounds received by Junior Hart. The objection urged was in substance that such evidence was irrelevant and immaterial on the question of the guilt of the defendant as to the homicide of Joe Hart, the witness Junior Hart having testified that he was not present when Joe Hart was stabbed; and both grounds may be disposed of by one ruling. It is not harmful error to admit evidence which is merely irrelevant and immaterial. A specific objection showing harmful error must be offered at the time the evidence is presented. Wimberly v. Toney, 175 Ga. 416, 422, 165 S.E. 257; Pylant v. State, 191 Ga. 587(1), 13 S.E.2d 380; Laney v. Barr, 61 Ga.App. 145, 6 S.E.2d 99. It is too late to set forth for the first time in a ground of a motion for new trial an objection, even though valid, as was attempted here. White v. State, 116 Ga. 573, 42 S.E. 751; Wynee v. State, 123 Ga. 566, 51 S.E. 636; Thompson v. Lanfair, 127 Ga. 557(2), 56 S.E. 770; Mickle v. Moore, 193 Ga. 150, 153, 17 S.E.2d 728.
3. Special ground 3 of the motion for new trial complains that the court erred in failing to charge, without a request, the law of voluntary manslaughter as related to mutual combat. The defendant contends that 'there was evidence which would have warranted a finding in this case that the slayer and the deceased upon a sudden quarrel, each being armed with a deadly weapon, the accused with a knife and the deceased with a pistol, mutually engaged in mortal combat, each using his weapon and intending to kill the other, and movant contends that it was not sufficient for the court to merely read to the jury the section of the Code relating to manslaughter, which the court did in this case.' ...
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