Post v. State
| Decision Date | 05 July 1946 |
| Docket Number | 15516. |
| Parties | POST v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
There is no merit in either of the special grounds of the motion for a new trial, complaining that the right of cross-examination was abridged, since each of the questions propounded called for a conclusion of the witness, and one of them was also argumentative. The general grounds were expressly abandoned.
(a) The court did not err in refusing a new trial.
Wilburn Post was tried and convicted in Fulton superior court of the offense of murder, the verdict containing a recommendation to mercy. He made a motion for a new trial on the general grounds and two special grounds. His motion for new trial was overruled and he excepted.
There was evidence that the killing occurred under the following circumstances: The defendant and two girls entered a restaurant for the purpose of obtaining sandwiches. Preston Nalls (the deceased) was in the restaurant at the time and spoke to the girls, but the woman operating the restaurant later ordered him to leave because he was cursing and arguing with some one. He was on the outside of the restaurant when the defendant and the two girls came out. The deceased made a remark to one of the girls, and the defendant approached him with his arm raised. The deceased backed away waving his left hand while his right hand was in his pocket. He told the defendant to go on back, he did not want to bother him. The defendant stabbed the deceased over the heart with an ice pick, killing him almost instantly.
The defendant's statement to the jury was in part as follows
Counsel for the plaintiff in error states in his brief that the general grounds of his motion for a new trial are not insisted on.
The amended motion for new trial consists of two grounds only involving similar questions.
The first amended ground assigns error because during the trial of the case, and on cross-examination of a witness for the State, Gertrude Weems, the court would not permit counsel for the defendant to ask the witness the following question 'He had his right hand in his pocket as if he was reaching for something?' The question was objected to as calling for a conclusion of the witness, which objection was sustained. The assignment of error states: that the ruling of the court deprived the movant of his right to a thorough and sifting cross-examination of a State's witness; that the defense was justifiable homicide in defense of self, and the question propounded was vital in that counsel for the movant was attempting to show that the moment before the stabbing, the deceased reached into his pocket with his right hand, as if reaching for something, thereby causing the movant to fear for his safety at the hands of the deceased.
The other special ground assigns error, for that during the cross-examination of the same witness for the State, counsel for the movant asked the witness the following question: 'And you would not have seen a knife in his hand if he had had one, because you could not see the ice pick, is that true?' Substantially the same objection was made by counsel for the State to this evidence as was made to the question asked and referred to in the first ground of the amended motion for new trial. The objection was sustained by the court, and the same assignment of error is made in this ground as was made in the first ground.
The following testimony of the witness, Gertrude Weems, and questions propounded, will show the circumstances under which the ruling was made:
Q. 'He had his right hand to his pocket as if he was reaching for something?' Mr. Parham: 'I think that's an improper question.' Mr. Bowers: Mr. Parham: 'I think it would be for the jury to say.' The Court: 'I sustain the objection.'
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