NeeSmith v. State, 35830
| Decision Date | 28 September 1955 |
| Docket Number | No. 35830,No. 2,35830,2 |
| Citation | 92 Ga.App. 632,89 S.E.2d 559 |
| Parties | E. D. NEE SMITH v. The STATE |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. The evidence is sufficient to sustain the verdict.
2. The special grounds are without merit for the reasons given in the body of the opinion.
The defendant was indicted for murder and convicted of voluntary manslaughter. He filed his motion for a new trial on the statutory grounds and added three special grounds by amendment. The court denied the motion for a new trial and the assignments of error made here are on this judgment.
The evidence shows substantially: At the time of the alleged homicide, the defendant was living in what is known as the Cedar Crossing settlement of Toombs County in the house with his wife's mother, Mrs. J. I. Turner, his wife, Ira Mae NeeSmith is a daughter of Mrs. J. I. Turner. The deceased, J. C. Turner, is a son of Mrs. J. I. Turner. The deceased lived in the same settlement, about three miles from the house wherein Earl Dean NeeSmith lived. Josephine Foster is a niece of Ira Mae, and was spending the night with the defendant and his wife on the night that the alleged homicide occurred. There was some kind of entertainment that night at Hillsdale Schoolhouse, located in the same settlement. The defendant, his wife, and his mother-in-law and his niece, Josephine, twelve years old, went to this entertainment. The deceased and his wife were also there. After the entertainment was over, the defendant, his wife and children, Josephine Foster, and his mother-in-law went home. Nothing at all unusual happened at the schoolhouse, or until after they had returned home. The deceased and his wife also left after the entertainment was over and returned to their home and went to bed. The defendant and the deceased did not contact each other in any way until the alleged shooting of the deceased by the defendant. After the deceased and his relatives returned from the entertainment, there was some kind of 'argument' between the defendant and his wife. The mother-in-law evidently became excited and wanted to go to the home of her son, the deceased. The defendant agreed to carry her there, and they all got in the car and proceeded toward the home of the deceased, located about three miles from the Mrs. J. I. Turner's home. Those who started there were the defendant, his wife, Mrs. J. I. Turner (the mother-in-law), the children of the defendant, and the defendant's niece. On the way, and just before reaching the home of Jim NeeSmith, the car in some way got into a ditch, and the defendant, who was driving it, was unable to get it out. The occupants of the car proceeded to walk on to the home of Jim NeeSmith, ahead of the defendant. Mrs. J. I. Turner was doing a lot of hollering and carrying on, the reason for her hysterics not being apparent from the evidence.
Josephine Foster testified that the defendant got mad and ran the car into a ditch on the trip from home to the house of the deceased, and close to Jim Nee Smith's house. She also testified that the defendant had a pistol; that she saw it in his pocket; that he had been drinking and she saw him drink some wine. Jim NeeSmith testified that the defendant had been drinking when he same to the witness' house, but was not drunk. The evidence of drinking was that this witness smelled wine, whisky, or something on his breath. When the car stopped in the ditch, all occupants got out and went on to Jim NeeSmith's house. Later, the defendant came on behind them, and as he approached the house, he shot his pistol, pointed in the direction of the little girl, Josephine, who had one of the defendant's children in her arms. Jim NeeSmith said to him he ought not to be shooting around his house. At the request of the defendant, Jim NeeSmith went with him and Jim's son to help get the car started. They got the car started and the defendant drove it on to Jim NeeSmith's house, and he remained there talking with Jim for ten or fifteen minutes, as to paying him for helping about the car; and the defendant at that time apologized to Jim for anything he had said or done there; and wanted to know where the defendant's wife and children were. By that time, the defendant's wife and the children and Josephine had gone on to the home of J. C. Turner, the deceased, walking through the field. Across the field the distance from Jim Nee Smith's to the home of the deceased was about one-fourth of a mile. Around the road it was about one mile. Mrs. J. I. Turner was still at the home of Jim Nee Smith. After the defendant's wife and children and Josephine had gone to J. C. Turner's house and reported what had happened at the home of Jim NeeSmith, the deceased and his wife went in his truck to Jim NeeSmith's home. The reason why they went was that it was reported that the mother of the deceased, Mrs. J. I. Turner, was dying there; and when they arrived at Jim NeeSmith's, Mrs. J. C. Turner got out of the truck and remained there, while the deceased, J. C. Turner, drove away in the truck, back toward their home, in the same direction from which they had come. At that time the deceased said he was going to call the patrolmen. After she had been there for only a few minutes, she heard some one hollering in front of Jim NeeSmith's house and when she ran out there, it was the defendant's wife; Ira Hudson was with her. Then Mrs. J. C. Turner went on back to her house in the truck belonging to her husband, the deceased. Ira Hudson went with her. The defendant's wife was left behind. Mrs. J. I. Turner was still there. Only a very short time elapsed between the time the defendant left Jim NeeSmith's house and the time when the deceased came there, put his wife out, and left, driving his truck back toward their home. Ira Hudson and his wife were sleeping and Ira was awakened by the lights of the truck of the deceased shining in the window of the room. He looked out and recognized the truck. Ira and his wife got up and were dressing when they heard three pistol shots out in or near the front of the house. When they got to the door, the deceased was coming around the end of his truck hollering 'He kil't me,' and groaning, or making some kind of sound denoting pain. The wounded man came on into the house where he sank on the floor, asked for water, and asked for something to be placed under his head. The wife of the defendant had come there from the house of the deceased, which was only about 150 yards from the Hudson home, and she brought the deceased's shotgun with her. She and Ira Turner then went to the home of Jim NeeSmith and informed the wife of the deceased what had happened. The wife of the deceased got into the same truck, which was the truck belonging to the deceased, and she and Ira Turner went on back to Hudson's house, and soon had the wounded man, the deceased, in the truck and on the way to Conner's hospital at Vidalia, Georgia. Ira Hudson or his wife heard nothing before the shots were fired--no conversation, no loud talking. Hudson testified that any talking out there would have had to have been very loud for him to have heard it. They did not see a car ahead of the truck of the deceased at the time. Neither did they see a weapon about the person of the deceased. They saw a white top car going on down the road beyond their house. This car was ahead of the truck belonging to the deceased. The defendant was driving a white top car that night. There is considerable testimony to the effect that there is a network of roads in that settlement.
The deceased was carried to Conner Bedingfield Hospital in Vidalia, and was treated for his wounds by Dr. J. I. Conner. He remained there about eleven days and was released. He returned to the hospital for treatment by Dr. Conner about once a week for two or three weeks, and then after that he came back about a month later, and then, on or about January 27, 1955, he came back to see Dr. Conner, and Dr. Conner sent him to Dr. Quattlebaum in Savannah, Georgia. In the meantime, and after he was released from the hospital the first time, after eleven days, he went about in his car, driving it, and this continued until he went back to the hospital January 27, about three months after he was shot. Doctor Quattlebaum operated on him, and he died within about thirty-six hours after he was carried to this doctor, early on January 29. Doctor Conner testified that J. C. Turner was brought to the hospital after he was shot; that he had a gunshot wound in his abdomen and also in the chest--a pistol. The two bullets entered from the front. One entered the upper part of his left chest and one was down in the upper part of his stomach or abdomen. One came out the right flank near the right kidney, and the other one came out his back and maybe grazed his arm. The doctor opened the body of J. C. Turner and found that the bullet had gone through his stomach and penetrated his intestines five or six times; that it was a serious wound; that the treatment given was to close up the punctures; he sutured them up, and 'treated him as he would be treated anywhere.' The doctor stated that he did not trace the other bullet; that the other bullet had gone into the left lung, which had collapsed, but it later expanded, and he did not go into the chest at all; that he believed the deceased stayed at the hospital two or three weeks; that the witness never went to see him after he was removed from the hospital; that the patient came in every week for him to check for a period of two or three weeks, then four weeks later came back, and then came back the time the doctor sent him to Savannah. The last time he came back, The witness thought that the adhesions that caused the bowels to lock resulted from the wounds received in the beginning. The doctor kept the patient...
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