McKeever v. State, 43779

• Decision Date: 04 September 1968
• Docket Number: No. 3,No. 43779,43779,3
• Citation: 118 Ga.App. 386,163 S.E.2d 919
• Parties: Asa McKEEVER v. The STATE
• Court: Georgia Court of Appeals

Page 919

163 S.E.2d 919

118 Ga.App. 386

Asa McKEEVER v. The STATE.

No. 43779.

Court of Appeals of Georgia, Division No. 3.

Sept. 4, 1968.

Rehearing Denied Sept. 25, 1968.

Certiorari Denied Nov. 7, 1968.

Syllabus by the Court

No cause for reversal of the conviction and sentence for voluntary manslaughter appears for any reason asserted and instited upon.

Asa McKeever was tried for murder, and appeals from a conviction and sentence for voluntary manslaughter. The victim was the doorman of a private club, of which the defendant was not a member, and died as the result of a 'shoot-out' on a Sunday evening following an altercation concerning the defendant's presence on the premises. Error is assigned on various rulings not involving the sufficiency of the evidence to support the conviction.

Garland & Garland, Edward T. M. Garland, Atlanta, for appellant.

Lewis R. Slaton, Sol. Gen., John W. Stokes, J. Walter LeCraw, Atlanta, for appellee.

JORDAN, Presiding Judge.

1. The third enumeration refers to the testimony of three witnesses concerning an altercation on the premises of the club on Sunday one week before the shooting, involving the defendant and others, but not the deceased, which was terminated when it appeared that the defendant was armed with a pistol. The court admitted the evidence over objection for the limited purpose of showing motive, intent, scheme, and course of conduct by the defendant, and overruled a motion for mistrial on account of this evidence. The fourth enumeration refers to the testimony of one of these witnesses that he told the manager of the club about the incident out of the presence of the defendant. This testimony is limited to the fact of informing the manager. The fifth and sixth enumerations are directed to the testimony of the manager, that on the Friday preceding the shooting he discussed the incident of the previous Sunday with the defendant, who told him that if he had drawn his pistol he would have used it, in reply to which the manager told him, 'The best thing for you to do is stay away from the club henceforth and forever.' This evidence was admitted under the same limitations as the testimony regarding the incident on the Sunday the week before the shooting. The ninth enumeration is directed to testimony of a witness who related a discussion with the defendant after the shooting, in which the defendant admitted an unsuccessful attempt to kill another person, stating 'I told you I could shoot that pistol. I should have killed Knucklehead, but I missed him. I shot at him four times.' The witness also disclosed that the defendant continued by saying, in reference to the victim in the present case, 'I shot him. I played that sucker out of his life.' Later, he reiterated this testimony in language indicating that the defendant told him that after he failed to kill Knucklehead he learned how to shoot, and tricked the victim in the present case into returning his, the victim's pistol, to the holster. Collectively, these enumerations are insisted upon solely on the basis that evidence of the general character of the defendant is inadmissible unless the defendant chooses to place his character in issue (see Code §§ 38-201, 38-202) and in so doing the defendant relies upon the leading case of Bacon v. State, 209 Ga. 261, 71 S.E.2d 615. The holding in the Bacon case, as expressed in the headnote, in recognizing that in the prosecution for a particular crime, evidence of a wholly distinct crime is irrelevant and inadmissible, expressly qualifies this general rule by stating, 'unless there be shown some logical connection between the two from which it can be said that proof of the one tends to establish the other.' In that case the court was dealing with six unrelated previous convictions for attempted burglary and burglary as proof of the intent to steal in a trial for burglary, and noted in the opinion that an intent to steal, as distinguished from an intent to commit a felony, is not necessarily an essential element of burglary. Here, in a trial under an indictment for murder, it was essential, in order to convict for this offense, for the State to prove malice aforethought, i.e., a preconceived intention to kill without justification or excuse present when the acts occurred which resulted in the death of the victim. This is a state of mind, and although the jury by its verdict exonerated the defendant of malice aforethought, this issue and the intent of the defendant were in controversy throughout the trial. Although the evidence here under attack may show other criminal transactions, and thus reflect generally on the character of the defendant, it is logically and legally relevant to the controlling issue before the jury, whether the state of mind of the defendant was such that he acted with malice aforethought and murdered his victim, or whether he acted in the heat of passion, committing voluntary manslaughter, or whether he acted under justifiable circumstances. Under the circumstances here shown the evidence was properly admitted.

2. The second enumeration is based on the testimony of a witness to the altercation on the Sunday preceding the slaying, as discussed above, that on the next day he had a conversation with the manager of the club outside the presence of the defendant, the subject of which was the altercation of the previous day. The fact that the manager of the club obtained hearsay knowledge of the altercation in this manner is not itself hearsay, being within the direct knowledge of the witness, and the testimony was not inadmissible for any reason asserted.

3. The seventh enumeration is based on the testimony of the manager, to the effect that he informed the victim, outside the presence of the defendant, to keep the defendant off the club premises. The relevancy of this fact is clear, when considered with the testimony that the manager advised the defendant to stay away from the club, and the circumstances under which the altercation and 'shoot-out' occurred.

4. The eighth enumeration is directed to the statement of a witness to the altercation preceding the 'shoot-out' but not the 'shoot-out' itself, to the effect that he thought the trouble was over. Counsel insists there are no facts presented which would authorize this conclusion, and that its admission invades the province of the jury respecting an ultimate...