Patterson v. State
| Decision Date | 19 February 1936 |
| Docket Number | 10687. |
| Citation | 184 S.E. 309,181 Ga. 698 |
| Parties | PATTERSON v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
For the reasons stated in the opinion, the trial court erred in overruling the motion for new trial.
Error from Superior Court, Butts County; G. Ogden Persons, Judge.
Julian alias Pat, Patterson was convicted of murder, and he brings error.
Reversed. Charge predicating conviction for involuntary manslaughter on finding that accused committed assault on deceased, but that such assault did not intentionally cause deceased to do any act which naturally tended to cause her death was not erroneous as authorizing conviction without finding that deceased's death was caused by accused's acts.
W. E Watkins and C. L. Redman, both of Jackson, and E. M. Smith, of McDonough, for plaintiff in error.
Frank B. Willingham, Sol. Gen., of Forsyth, and M. J. Yeomans, Atty. Gen., and B. D. Murphy and Jno. T. Goree, Asst. Attys. Gen., for the State.
Julian, alias Pat, Patterson was convicted of the murder of Virginia Walden. He filed a motion for new trial, which contained the general grounds and forty-four special grounds. This motion was overruled, and he excepted. The indictment was divided into five counts. Code 1933, § 27-701. Each count charged the defendant with the murder of the same person upon the same date, and differed only as to the manner of its commission. Count 1 alleged that he did murder Virginia Walden "by causing her by his acts and conduct to jump from an automobile," the acts and conduct causing her to so jump being unknown to the grand jurors, but being alleged by them to have been of such nature as to cause Virginia Walden to jump "in her own defense," whereby she sustained injuries from which she died. Count 2 alleged that he did murder Virginia Walden, in that "he did inflict injuries, and was instrumental in the inflicting of injuries, upon the person of Virginia Walden, the exact manner of inflicting which is unknown to this grand jury," from which she died. Count 3 alleged that he did murder Virginia Walden, in that "he did drive a certain Chevrolet coupé automobile into and against the body of Virginia Walden," inflicting injuries from which she died. Count 4 alleged that he did murder Virginia Walden, in that, while in the company of Virginia Walden in a Chevrolet coupé (same being a motor vehicle), he "did attempt to commit a violent injury upon her person," and did lay his hands unlawfully upon her person, and did attempt to kiss and hug and make amatory advances to her, and did drive his car upon the highway leading through Indian Springs in such a manner "and in such a direction away from Indian Springs that his conduct led her to think that he was carrying her away to some spot where he would continue his unlawful advance toward her with intent and purpose to commit an unlawful assault upon her body," thereby causing her by such conduct "in her fear and terror" to protect herself from said threatened assault by jumping from said automobile, thereby "inflicting the injuries" from which she died. Count 5 alleged substantially the same facts as to the defendant causing Virginia Walden to jump from the automobile; and then alleged that, "the said Virginia Walden fleeing along said highway, the said accused then and there drove said automobile along said highway, and drove the same into and against said Virginia Walden, as a result from which jump from said automobile, and as a result of the accused driving said automobile against her body," she thereby sustained injuries from which she died.
1. When qualifying the jury on their voir dire, the solicitor general read to them from the indictment, reading only count 3. By reason of this, counsel for defendant objected to any evidence being offered in proof of the other counts of the indictment, and moved that the state be limited to trial on the third count; which motion was overruled. In the first, second, third, and fourth grounds of the motion for new trial error is assigned on the ruling which allowed the introduction of evidence in support of all the counts of the indictment, on the refusal of the court of a request to charge the jury not to consider the first, second, fourth, and fifth counts, and on the court's reading in charge to the jury all the five counts. There is no merit on these grounds. There is no law requiring the solicitor general to read the indictment to the jury when qualifying them on their voir dire. While the indictment is in five counts, they are all substantially the same, some of them being stated more in detail; and the count that was read to the jury contained the essential allegations. There is no contention that the indictment was defective in that it contained more than one count. No demurrer to it was filed. There is no statute in this state which prohibits the joinder of several offenses of the same class or species in different counts of the same indictment. Davis v. State, 57 Ga. 66; Williams v. State, 107 Ga. 693, 33 S.E. 641; Webb v. State, 177 Ga. 414, 170 S.E. 252. The solicitor general stated that he was trying the defendant on all the counts of the indictment; and it appears that the judge read the entire indictment to the jury. In Lascelles v. State, 90 Ga. 347, 374 (4), 16 S.E. 945, 35 Am.St.Rep. 216, it was held that several counts may be joined in an indictment charging forgery, and "at the trial the state would not, as matter of law, be bound to elect on which particular count or counts it would rely for a conviction."
2. The judge allowed the state to introduce in evidence a photograph of the deceased, over objection that it was "irrelevant, immaterial, illustrated no issue in the case, and was prejudicial." Error is assigned on the ground that there "was no evidence as to when or where said photograph was made, nor as to how old deceased was when said photograph was made." The general objection, which from the motion for new trial appears to have been made by counsel for the defendant at the time the evidence was introduced, that it was "irrelevant, immaterial, illustrated no issue in the case, and was prejudicial," did not apprise the court of the specific objection that it had not been shown when or where the photograph was made, or how old the deceased was at the time it was taken; and the fact that these reasons are stated in the motion for new trial is not sufficient to raise the question before this court. Georgia R. R. v. Daniel, 135 Ga. 108 (2), 68 S.E. 1024; Legg v. Legg, 165 Ga. 314, 140 S.E. 868. The attention of the court must be called to the specific grounds of objection at the time the evidence is offered, and the failure to do so will be considered as a waiver. Andrews v. State, 118 Ga. 1, 43 S.E. 852, and cit. The photograph was identified as a picture of the deceased by her mother. One of the counts of the indictment alleged murder, upon the allegation that the defendant had driven his automobile upon the deceased at a certain time and a certain place, which acts caused her death. A witness for the state testified that on the night of the alleged homicide he saw a car run against and knock down a girl on the side of the road. He did not know her name, nor did he learn it. Counsel for the state exhibited to him a photograph identified as that of the deceased by her mother; and he testified that the picture was the likeness of the same girl he saw defendant with at Indian Springs on the night of the alleged homicide, they being in a car, and a likeness of the same girl he saw knocked down and injured in the road. The photograph was thus admissible for the purpose of identification.
3. The court charged the jury as follows: "And if you find from the evidence establishing the homicide that there were no facts of justification, extenuation, or mitigation, you would have the right to imply that the killing was felonious and constitutes murder, and the burden would then be shifted to the defendant to rebut such presumption of a felonious killing by proof, or his statement, to your reasonable satisfaction that the killing was not done with malice, but under facts establishing justification, extenuation, or mitigation, and if he fails to rebut such presumption, you would be authorized to find the defendant guilty of murder." Also, "Now, gentlemen of the jury, as I stated to you, if you do not believe beyond a reasonable doubt that the state has made out its allegations of murder against this defendant, as I have already explained to you so far in the charge, but that the defendant was not justified in his acts connected with the killing or the death of the deceased, you may then consider whether or not the defendant is guilty beyond a reasonable doubt of a lower grade of homicide, to wit, involuntary manslaughter in the commission of an unlawful act; for with such doubt upon your minds you could not convict this defendant of the crime of murder." It is contended that the expressions, "and if you find from the evidence establishing the homicide," and "that the defendant was not justified in his acts connected with the killing," violated the express provision of the Code 1933, § 81-1104, by expressing an opinion that a homicide or killing had been committed; and that this deprived the defendant of a fair trial. The state's case, of course, was based upon the theory of homicide. The defendant, however, denied all the allegations of the indictment, and defended on the ground that no act of his contributed to the death of the deceased. He disclaimed all connection with her death. The state did not contend, nor does the evidence warrant a finding, that any one else killed the deceased. Under the law and the evidence her death could have been attributed to...
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