Perry v. State

• Decision Date: 15 October 1948
• Docket Number: No. 32114.,32114.
• Citation: 50 S.E.2d 709
• Parties: PERRY. v. STATE.
• Court: Georgia Court of Appeals

50 S.E.2d 709

PERRY.

v.STATE.

No. 32114.

Court of Appeals of Georgia, Division No. 2.

Oct 15, 1948.

Rehearing Denied Dec. 15, 1948.

Syllabus by the Court.

1. Where one on trial for murder is convicted of involuntary manslaughter in the commission of an unlawful act without intent to kill, such conviction being the equivalent of an acquittal of murder and also an acquittal of voluntary manslaughter, the admission, even if illegal, of evidence tending to show that the homicide was murder or voluntary manslaughter is not cause for a new trial.

2. Since it is not the statement of the third person which is admitted as substantive evidence, but only the fact of the accused's failure to deny it, the admissibility of such testimony is in no way affected by the fact that the incriminating statement was uttered by the defendant's wife who isincompetent to testify against her husband as a witness in a criminal prosecution.

3. An ordinance of the City of Thomson certified as follows, "I, C. H. Moore, do hereby certify that I am clerk of the City of Thomson, and keeper of the records of said municipality and as such do certify that the foregoing is a true and correct copy of an ordinance adopted the 28th day of March, 1917, by the Mayor and Council of the Town of Thomson and the Town of Thomson as the same appears recorded in Book of the Minutes of the meetings of the Mayor and Council of Thomson, Georgia, beginning September 28th, 1914, on page 74 of said book. I further certify that said ordinance is still of force and effect. Witness my hand and seal of the City of Thomson, this the 28th day of February, 1948, " was not subject to the objection that "it must be shown that the ordinance was duly and properly adopted -- it isn't sufficient to show that it appears in the ordinance book of the City of Thomson."

4. The evidence authorized the verdict and the trial court did not err in overruling the motion for a new trial.

Error from Superior Court, McDuffie County; C. J. Perryman, Judge.

J. D. Perry was convicted of involuntary manslaughter in the commission of an unlawful act without intent to kill, and he brings error.

Judgment affirmed.

Stevens & Stevens, of Thomson, for plaintiff in error.

J. Cecil Davis, Sol. Gen., of Warrenton, for defendant in error.

MacINTYRE, Presiding Judge.

J. D. Perry, the defendant, was indicted and tried for the murder of Emmett Dunn, Jr., in the Superior Court of McDuffie County; and was found guilty of involuntary manslaughter in the commission of an unlawful act without intent to kill. He filed a motion for a new trial and an amendment thereto containing three special assignments of error, and after a hearing the motion was overruled by the trial judge. To this judgment he excepts and assigns the same as error before this court.

1. In special ground one the defendant contends that the court committed reversible error by ruling out certain testimony elicited upon the cross-examination of John Marion Dunn. The material part of this testimony, set out in ground one of the amendment to the motion for a new trial, is as follows:

"Q. Did you ever work there for Mr. Perry? A. Yes, sir."

"Q. You got along all right with Mr. Perry? A. Yes, sir."

The grounds of objection urged were that the defendant was charged with murder, that the deceased and the witness (his brother) were moving along the street together, that the defendant contended in his defense that the shooting was accidental; and hence that the evidence was admissible to negative any contention that the shooting was intentional or was done with malice.

The evidence was not sought to be introduced for the purpose of illustrating the credit of the witness by showing the feeling of the witness toward the defendant, but was sought to be introduced for the purpose of negativing malice and to show that the killing was not intentional. The verdict of the jury on the trial for murder was for guilty of involuntary manslaughter in the commission of an unlawful act without intent to kill. The verdict was the equivalent of finding the defendant not guilty of murder and thus found that there was no malice. This verdict also acquitted the defendant of voluntary manslaughter and thus found that there was no intent to kill the deceased. Hence, the ruling out of the testimony over the reasons urged in objection by the defendant, if error, was harmless error because the jury found in the defendant's favor on the issues he was seeking to support by the answer which was ruled out. Jordan v. State, 22 Ga. 545, 546 (9); Goldsmith v. State, 54 Ga.App. 268, 272, 187 S.E. 694. This ground is not meri-torious.

2. During the testimony of Chief of Police Cross the court admitted the following evidence over the objection of the defendant then and there made: "I saw Mrs. Perry there in the house, and John D. Perry [the defendant], Mrs. Perry and I were all there in the same room at one time. Mrs. Perry made a statement to me there in the presence of Mr. Perry. At that time Mr. Perry was about five feet distant from Mrs. Perry and me. As to whether that statement was made loud enough for Mr. Perry to have heard it -- well, I didn't see anything that would have kept him from hearing it. I don't know whether he heard it or not. She said he came to the house and got the gun out of the drawer and she attempted to get it away from him and failed to do it, and that he had done that on previous occasions. Mr. Perry did not make any denial of that." In special ground two it is shown that to the entire portion of the witness' testimony as to Mrs. Perry's statement in the presence of Mr. Perry the defendant objected that the evidence was not a part of the res gestae and that this was testimony of the wife against the husband and that she was incompetent to so testify in a criminal case except where the statement was a part of the res gestae, or where the statement was made under such circumstances that the husband, the defendant, "would be bound to answer, " and that it was not shown that the defendant heard the statement against his interest.

We think that the court could have properly admitted the evidence under the rule that "acquiescence or silence, when the circumstances require an answer or denial or other conduct, may amount to an admission." Code of 1933, § 38-409. Since it is not the statement of the third person which is admitted as substantive evidence, but only the fact of the accused's failure to deny it, the admissibility of such testimony is in no way affected by the fact that the statement was uttered by the defendant's wife who is incompetent to testify against her husband as a witness in a criminal prosecution. Joiner v. State, 119 Ga. 315 (1), 46 S.E. 412; Nunn v. State, 143 Ga. 451(2), 454, 85 S.E. 346; Dunham v. State, 8 Ga.App. 668(3), 70 S.E. 111. See Cobb v. State, 27 Ga. 648, 696(4 & 5); Bowen v. State, 36 Ga.App. 666, 667, 137 S.E. 793; and also Knight v. State, 114 Ga. 48(1 & 2), 39 S.E. 928, 88 Am.St.Rep. 17. The question of whether the defendant in fact heard the statement is for the jury [Knight v. State, supra (2)]; and if they found under the facts of this case that he did hear it, it would be a further question for them to determine whether under the circumstances an answer or a denial or other conduct was required, and also whether his acquiescence or silence under such circumstances amounted to an admission. The admissibility of the evidence was properly determined by the court and the weight which the jury might give to such evidence was left to them. Smiley v. State, 156 Ga. 60, 118 S.E. 713; Berry v. State, 10 Ga. 511, 521.

The defendant also objected to the admission of that portion of the wife's statement in which it was testified that she said "He had done that on previous occasions" on the ground that this portion of the evidence in regard to happenings in the past was not relevant and was introduced merely for the purpose of prejudicing the jury against the defendant.

We think that the only way in which this testimony could have been harmful to the defendant was in its relationship to a verdict of murder or to a verdict of voluntary manslaughter, as tending to show malice or intent to kill; and, the jury having acquitted him of both by their verdict of involuntary manslaughter, it necessarily follows that the admission of the testimony, even if erroneous, was harmless. This ground shows no reversible error.

3. In special ground three it appears that the defendant, at the time it was tendered in evidence, objected to the introduction of an ordinance of the City of Thomson which made it a violation of law to shoot fire-arms within the corporate limits of the city without first having obtained the consent of the Mayor. The grounds of the objection were as follows: "This man (defendant) is indicted and is being tried under the laws of the State of Georgia. He isn't being tried under any municipal ordinance at all. When a man is being tried for a statutory offense certainly they can't bring in the matter of a violation of a City law. He isn't charged with any offense under that law [the city ordinance]; he is charged with murder."

As was stated in the objection to the introduction of the ordinance in evidence, the defendant was being tried for the offense of murder under an indictment which alleged, omitting its formal parts, that the defendant on February 4, 1948, with force and arms did unlawfully and with malice aforethought, kill and murder one Emmett Dunn, Jr., a human being in the peace of the State, by shooting the said Emmett Dunn, Jr., with a pistol and inflicting upon him a mortal wound. Under the allegation of "malice aforethought" the State may introduce any evidence which is relevant and material upon the issue of malice, either express (the deliberate intention unlawfully to take away the life of a fellow creature manifested by external circumstances capable of proof) or implied (where no considerable provocation appears and...