Moore v. State, 26964

• Citation: 228 Ga. 662,187 S.E.2d 277
• Decision Date: 11 February 1972
• Docket Number: No. 26964,26964
• Parties: Clarence MOORE, Jr. v. The STATE.
• Court: Supreme Court of Georgia

Page 277

187 S.E.2d 277

228 Ga. 662

Clarence MOORE, Jr. v. The STATE.

No. 26964.

Supreme Court Of Georgia.

Feb. 11, 1972.

Syllabus by the Court

The verdict being authorized by the evidence and no error of law appearing, the conviction of the defendant for the offense of murder must be affirmed.

Will Ed Smith, Eastman, for appellant.

Albert D. Mullis, Dist. Atty., Eastman, Arthur K. Bolton, Atty. Gen., Atlanta, for appellee.

NICHOLS, Justice.

Clarence Moore, Jr. was indicted, convicted and sentenced to life imprisonment for the murder of Raymond Autrell Peacock. A motion for new trial was filed, amended and overruled and the present appeal filed.

The evidence disclosed without dispute that on the day of the homicide the defendant went to the place where the deceased was employed, asked him to step outside and within a matter of minutes the defendant shot the deceased six times with a .38 caliber pistol. The disputed facts relate to the events leading up to this encounter.

1. "Provocation by threats will in no case be sufficient to free the person killing from the crime of murder, or reduce the homicide from murder to manslaughter, when the killing is done solely for the purpose of resenting the provocation thus given (Cumming v. State, 99 Ga. 662, 27 S.E. 177; Green v. State, 195 Ga. 759, 25 S.E.2d 502; but, where the killing is claimed to have been done on account of a reasonable fear in the mind of the slayer, threats accompanied by menaces, though the latter do not amount to an actual assault, may in some instances be sufficient to arouse the fears of a reasonable man that his life is in danger, or that a felony is about to be perpetrated upon him. In all such cases the motive with which the slayer acted is for determination by the jury; and if it be claimed that the homicide was committed, not in a spirit of revenge, but under the fears of a reasonable man, it is for the jury to decide whether or not the circumstances were sufficient to justify the existence of such fear. Cumming v. State, supra; Willingham v. State, 169 Ga. 142, 149 S.E. 887; Warrick v. State, 125 Ga. 133, 53 S.E. 1027.' Jarrard v. State, 206 Ga. 112(6a), 55 S.E.2d 706.' York v. State, 226 Ga. 281, 174 S.E.2d 418.

The events occurring during the encounter, which resulted in the death, were presented by the defendant to the jury in an unsworn statement. The defendant related a factual situation of threats and menaces and a shooting under circumstances which would have authorized the jury to believe that the defendant was acting under the fears of a reasonable man when he shot the deceased. However, such a finding was not demanded, and under the evidence adduced by the State relating to events which occurred the previous night and earlier on the morning of the homicide, the verdict was authorized by the evidence.

2. Error is enumerated on the refusal of the trial court to permit a thorough and sifting cross examination of one of the State's witnesses. The record discloses that the trial court expressly ruled that counsel for the defendant could ask this witness any question he wished and that it would be taken up question by question. The court excluded the answer to one question which had been answered three times and did not by such ruling prohibit a thorough and sifting cross examination of such witness. Compare Hunsinger v. State, 225 Ga. 426, 428, 169 S.E.2d 286, and citations.

3. Error is enumerated on the ruling on admitting a statement made by the victim shortly after the shooting which resulted in the witness taking certain actions. Assuming, but not deciding, that such statement was not admissible as a part of the res gestae it was admissible to explain the conduct of the witness. See Code § 38-302; Estes v. State, 224 Ga. 687, 164 S.E.2d 108, and citations. No error is shown by this enumeration of error.

4. During the opening argument by the State, a prejudiced and inflammatory statement was made by specially employed counsel for the State. A motion for mistrial was made by counsel for the defendant. The trial court instructed the jury not to consider such statement and rebuked the specially employed counsel. Thereafter, counsel for the defendant renewed his motion for mistrial, which was overruled.

'(T)his court has repeatedly held that if the trial judge acts immediately, and in the exercise of his discretion takes such action as in his judgment prevents harm to the accused as a result of such improper statements, a new trial will not be granted unless it is clear that such action failed to eliminate from the consideration of the jury such improper statements. Brown v. State, 148 Ga. 264, 266, 96 S.E. 435; Johnson v. State, 150 Ga. 67(1), 102 S.E. 439; Waller v. State, 164 Ga. 128(4), 138 S.E. 67.' Nelson v. State, 187 Ga. 576, 583, 1 S.E.2d 641. Spell v. State, 225 Ga. 705, 708, 171 S.E.2d 285.

Where, as in this case, the trial court not only instructed the jury not to consider such argument but also rebuked counsel, no abuse of the discretion granted by Code § 81-1009 appears.

5. The jury returned to the court soon after it had retired to consider its verdict and asked the court for instructions as to the punishments which the defendant could receive under the different verdicts authorized by the court's instruction. The trial court instructed the jury that at such point in the trial they were only concerned with the guilt or innocence of the defendant of such charges and not with punishment. Error is enumerated on such instruction and it is contended that the jury should have been instructed as to the possible sentences for each crime that the jury was authorized by the court's instruction to find the defendant guilty of.

This enumeration is without merit. The Act of 1970 (Ga.L.1970, pp. 949, 950; Code Ann. § 27-2534) provides in part: 'At the conclusion of all felony cases and after argument of counsel and proper charge from the court, the jury shall retire to consider a verdict of guilty or not guilty without any consideration of punishment.' (Emphasis supplied.) It is only after the initial determination of the defendant's guilt of a felony that the jury is concerned with the sentence of the defendant. To allow the jury to consider the various sentences for the various offenses authorized by the court's instruction before a determination of guilt would be to repeal the intent of the legislation providing for a prior determination of...