Norrell v. State, 42820

CourtUnited States Court of Appeals (Georgia)
Writing for the CourtLewis R. Slaton, Sol. Gen., J. Walter LeCraw; BELL
Citation116 Ga.App. 479,157 S.E.2d 784
PartiesWilliam R. NORRELL v. The STATE
Docket NumberNo. 42820,No. 2,42820,2
Decision Date19 September 1967

Page 784

157 S.E.2d 784
116 Ga.App. 479
William R. NORRELL
No. 42820.
Court of Appeals of Georgia, Division No. 2.
Sept. 19, 1967.

Page 787

Syllabus by the Court

1. The evidence authorized the verdict finding the defendant guilty of involuntary manslaughter in the commission of an unlawful act.

2. Where there was no proof of a plenary confession by the accused, a charge on the law of confessions was not authorized by proof of mere incriminating admissions.

3. One is not entitled to the benefit of a motion to suppress evidence under Section 13 of an Act of 1966 (Ga.L.1966, pp. 567, 571; Code Ann. § 27-313) unless he is a person 'aggrieved by an unlawful search and seizure.'

4. After written statements by other persons present at the scene of the shooting were admitted in evidence without [116 Ga.App. 480] objection, it was not error to deliver these statements into the possession of the jury in the absence of a timely motion or objection made with reference to prohibiting the statements from being considered by the jury during their deliberations.

5. The exclusion of testimony bearing on the involuntariness of admissions made by defendant while under arrest was harmless where defendant in his unsworn statement on the trial reiterated the particulars of the previous admissions.

6. Enumerations complaining that the court expressed an opinion on the evidence will not be considered whre the defendant failed to object or move for mistrial when the judge made the remarks or rulings in question.

The indictment in this case charged that Ricky Norrell murdered Othel Mills by shooting him with a rifle.

The evidence on the trial showed that the homicide occurred in Fulton County on a heavily wooded tract of land owned by the widow of a doctor who had operated a general medical and surgical clinic on the premises prior to his death in 1958. There were weird rumors that the premises had been used as an insane asylum, that the house was haunted, and that 'waterheads,' or hydroencephalics, roamed the woods at night. For about six years prior to the homicide the deceased and his family rented a portion of the residence on the premises as living quarters. During this time curiosity seekers and vandals frequently came onto the premises at night. These intruders caused various property damage and would sometimes drive around the house, screaming and cursing, or throw rocks at the house, or shoot guns and fireworks. Deceased tried to stop these activities by accosting the intruders and remonstrating with them. On the night of September 6, 1966, the deceased was missing from the house, and the owner of the premises initiated a search for him. Shortly after midnight a police officer found the deceased's body beside the

Page 788

driveway leading from the residence, approximately 450 feet from the public road. The body bore two gunshot wounds in the chest, either of which would [116 Ga.App. 481] have caused death. There was expert opinion, based on ballistics tests, that a .22 caliber bullet taken from the body could have been fired from the semi-automatic rifle used by defendant earlier in the evening.

After his arrest the defendant, a high-school student, gave to police officers two written statements, similar in content, which were later introduced in evidence: 'On Labor Day, Monday, everybody met down at the store * * * where we always meet * * * About 7:30 p.m. everybody was talking about these water-headed people. So we were going to see one * * * It was myself, Jerry Atkinson, and Davis Mobley who went. We got down there to Dr. Schneider's and I was driving a 1957 Ford. We backed down into the driveway and got about 150 yards away from the house and we heard some gunshots * * * then a pecking on the back of my car. Jerry was lying on my windshield and he said that after we got on up the driveway a little ways a man threw a board with nails in it in front of my car and we got a flat tire * * * So we pulled on out of the driveway, regrouped at an E-Z Store, and fixed my flat tire. We decided we were going to go back the next night. We were going to scare the same old man * * * On Tuesday night * * * we loaded up in David Mobley's station wagon. There was me, Fred Atkinson, Jerry Atkinson, David Mobley, Gene Perkins, Allen Stanley and Johnny Scoggins in the station wagon and we went on down to Dr. Schneider's * * * to the driveway and backed into it * * * Jerry started running over the curb and he pulled up a little bit and the fuel pump cut off, and we pulled out a little bit and everybody started screaming, 'Go back down in there.' We got on back down in the driveway * * * pretty close to the house and Fred as leaning out the tailgate and was going to bend down the tag. All of a sudden Bubba, Fred, Screamed, 'My God, there he is.' I looked up and * * * this big old man came out out behind a tree and he had a rock in his hands * * * He threw the rock and it hit the quarter panel of the car and glanced off and hit Fred in the head * * * Fred screamed 'I've been hit in the head,' and I grabbed him by the pants and pulled him back in and I screamed at David, 'Get the hell out of here.' * * * [116 Ga.App. 482] I had the rifle in my left hand. The safety was on * * * The old man had shot a shotgun right after he had thrown the rock. I heard a .22 shot as we were going up the driveway and I didn't know where it came from * * * After I told him to get out from there, I heard the first gunshot and Fred was still sticking his head out the window and I kept pulling him back in and we got on up the road a piece * * * I had the gun lying on the tail gate. I pulled the safety off and started firing wild * * * Fred was still trying to get up and look over the tail gate. I knocked him back down again and held him down with my right hand as I pulled the trigger with my left * * * The car was bouncing upon the dirt road so bad that the gun barrel was just bouncing all over the rear end. I * * * just kept pulling the trigger all the time * * * After that I didn't hear any more gunshots * * * I did not know if I had hit the old man or not * * * We got back upon the road, and * * * went on back to the E-Z Store to get our cars. We got the cars and * * * All of us met at the Sinclair Station on Cleveland Avenue and we looked at the side of the car and saw that it had a * * * gunshot hole in the right rear quarter panel * * * We got up the next morning and went to school as if nothing had happened. After work the next day-it was about 7:15, maybe 7:30 p.m.-Johnny ran up to me and told me the old man was dead.'

Defendant made an unsworn statement on the trial, and this was consistent in all material respects with the extra-judicial statements: '(While making plans for the

Page 789

second trip to the premises) We were * * * talking about getting a rifle and we thought it was a good idea to scare this thing off before it had a chance to block the road again. We could shoot in the air and it wouldn't have a chance to throw this board in the road in front of us * * * That man was to my left. I was shooting straight down the road with my left hand * * * All I could be doing was trying to protect ourselves, to make a diversion * * * We meant no harm to anybody * * *'

By expert opinion relating to the position of the deceased when shot and the general trajectory of the bullets fired from the boys' car, defendant sought to establish that the bullets fired by him could not have hit deceased.

[116 Ga.App. 483] The jury returned a verdict finding defendant guilty of the crime of involuntary manslaughter in the commission of an unlawful act.

B. Hugh Ansley, Atlanta, for appellant.

Lewis R. Slaton, Sol. Gen., J. Walter LeCraw, J. Roger Thompson, Atlanta, for appellee.

BELL, Presiding Judge.

1 (a) Defendant contends (Enumeration 1) that the verdict finding him guilty of involuntary manslaughter in the commission of an unlawful act was not authorized because there was no evidence that he was in the commission of an unlawful act such as would support a conviction of that offense. The essential elements of involuntary manslaughter in the commission of an unlawful act are, first, the intentional commission of an unlawful act and, second, the killing of a human being without having so intended, but as the proximate result of the intended act. Wells v. State, 44 Ga.App. 760(1), 162 S.E. 835; Passley v. State, 62 Ga.App. 88, 89, 8 S.E.2d 131; Williams v. State, 96 Ga.App. 833(1a), 101 S.E.2d 747.

Code § 26-1009, defining involuntary manslaughter, provides: '(W)here such involuntary killing shall happen in the commission of an unlawful act which, in its consequences, naturally tends to destroy the life of a human being, or is committed in the prosecution of a riotous intent, or of a crime punishable by death or confinement in the penitentiary, the offense shall be deemed and adjudged to be murder.' Under this proviso if the homicide occurs in the commission of a crime punishable by confinement in the penitentiary, involuntary manslaughter is not involved. Owen v. State, 202 Ga. 616, 618, 44 S.E.2d 266.

In Stallings v. State, 100 Ga.App. 327(1), 111 S.E.2d 109, cert. den. 100 Ga.App. 864, the evidence showed that he defendant deliberately fired a pistol across a field and into woods under circumstances from which the jury could infer that the defendant knew or should have known of the presence of the deceased in the area and in the general direction in which defendant fired. This court held in that case that the jury were authorized to find that the defendant had committed an unlawful act in firing the pistol under the circumstances (Code § 26-1702) and the evidence thus authorized the [116 Ga.App. 484] verdict finding the defendant guilty of involuntary manslaughter in the commission of an unlawful act.

Under Code § 26-1702 shooting at another is a crime punishable by confinement in the penitentiary, and therefore a...

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