Pride v. State
| Decision Date | 17 November 1909 |
| Citation | 66 S.E. 259,133 Ga. 438 |
| Parties | PRIDE v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Where a witness testified that she was near the scene of a homicide and in a general way described her position and the relative positions of the deceased and the accused, and it appeared that the character of the place and certain obstructions were such that the witness could not portray as complete a picture of the scene as was presented to her view, it was competent for the witness to testify: "From where I was standing I could have seen [the deceased], if he had been standing up."
On the trial of a defendant charged with murder, where it is not shown, otherwise than by the statement of the accused, that the deceased was the assailant in the fatal encounter, it was not erroneous to exclude evidence of a previous uncommunicated threat made by the deceased against the accused.
On the trial of a person charged with murder, the accused, in making her statement before the jury, referred to a past wrong committed by the person slain, and stated that on account of that wrong the accused was about to swear out a warrant, when the offender again assaulted her with a knife, and that she fired the fatal shot to prevent the assault. While instructing the jury, the judge charged: This charge was not open to the criticism "that it was not adapted to the facts."
Other grounds of the motion for new trial, which relate to certain charges to the jury, are not of such character as to require the grant of a new trial.
The evidence was sufficient to support the verdict, and there was no abuse of discretion in refusing to grant a new trial.
Error from Superior Court, Early County; W. C. Worrill, Judge.
Ella Pride was convicted of murder, and she brings error. Affirmed.
Hawes & Pottle and Spencer R. Atkinson, for plaintiff in error.
R. R Arnold, J. A. Laing, Sol. Gen., and Jno. C. Hart, Atty. Gen for the State.
1. The defendant was convicted of murder, and made a motion for a new trial, which being overruled, she excepted. Ella Pride was the defendant. Will Smith was the deceased. Minnie Smith was the wife of Will Smith, and a witness for the state. Among other things she testified, in substance, as follows: Will Smith and Charles and Jerry Pride, the latter two being, respectively, the husband and stepson of the accused, were all picking cotton in the same field; the two Pride men being closer to Will Smith than witness, and all three of the men being close to the road. At the scene of the homicide, some of the ground was smooth, and some of it was not. The place where deceased fell "was the kind of slanting like, not much though; I can't tell exactly how much; the rows ran around the slant." Witness was about 25 yards from Will Smith, when she heard a conversation between him and Ella Pride with reference to a hat, and the conversation was immediately followed by the report of a pistol, which proved to be the fatal shot. The cotton was higher than witness, and thick, and she could not see them exactly. There was a little cotton house between witness and the place where Smith was shot; but she could see around the house from the place where she was standing at the time of the shooting. She saw Ella Pride and the smoke from the pistol, but did not see Will Smith, or either of the Pride men. Will Smith was taller than Ella Pride. Witness did not know whether Will Smith was stooping down or standing up at the time of the shooting, but said that if he had been standing up, looking as she was, she could have seen him.
One of the grounds of the motion for new trial complained of the refusal of the court to exclude the testimony of this witness, "From where I was standing I could have seen Will Smith if he had been standing up," upon the objection urged that it was a mere conclusion of the witness. In 1 Greenleaf on Evidence (16th Ed.) pp. 549, 550, § 441 (b), it is said that the opinion rule is "based on the thought that where the data for drawing an inference are before the jury, or can be placed before them, it is superfluous to add by way of testimony the inference which they can equally well draw for themselves." Under such circumstances it is further said But, after stating the rule and the reasons therefor above given, the text, continuing, recognizes as an exception thereto that the opinion of a layman or common observer may be received in evidence, if such person "observed the matter in issue and cannot adequately state or recite the data so fully and accurately as to put the jury completely in the witness' place and enable them to equally well draw the inference."
The meaning of the text is that, under the circumstances enumerated in the exception, the inference is not superfluous, but is of some assistance to the jury. That is really made the test. If the circumstances are such as to render the inference superfluous, it is excluded; if not, it is admitted. The exception alluded to is practically recognized in Mayor, etc., v. Wood, 114 Ga. 370, 40 S.E. 239, where it is said: "The opinion of a witness is not admissible in evidence, when all the facts and circumstances are capable of being clearly detailed and described, so that the jurors may be able readily to form correct conclusions therefrom." It will be observed that the application of the general rule made in the case cited was predicated on the nonexistence of circumstances sufficient to bring the case under the exception. To the same effect are rulings in the cases of Southern Mutual Insurance Co. v. Hudson, 115 Ga. 638, 42 S.E. 60; Central of Georgia Railway Co. v. Goodwin, 120 Ga. 83, 47 S.E. 641; Thomas v. State, 122 Ga. 151, 50 S.E. 64; O'Neill Manufacturing Co. v. Harris, 127 Ga. 643, 56 S.E. 739; Moore v. Dozier, 128 Ga. 95, 57 S.E. 110; Robinson v. State, 128 Ga. 255, 57 S.E. 315.
The testimony objected to in the case before us involves the expression of a negative inference by a common observer based on an observation which she testified that she made. If the witness spoke truthfully, it did not require an extended operation of the reasoning faculty to enable her to draw the inference involved in the testimony objected to. If she had the opportunity of seeing Will Smith, and did not see him, though she were looking where she could have seen him, if he had been standing up, the inference that he was not so standing was one that any ordinary person would naturally draw. There are many instances where negative inferences have been received in evidence under such circumstances; some decisions holding that the inference was a mere statement of fact, and others that, if it involved the expression of an opinion, the circumstances were such as to bring the case within the exception, rather than under the general rule. The case of Atchison, Topeka & Santa Fé R. Co. v. Miller, 39 Kan. (Randolph) 419, 18 P. 486, was an action for damages on account of the negligence in killing certain cattle. Two witnesses testified that the whistle was not sounded, and they were satisfied that it was not; that they were in a position to have heard it, if it had been sounded. In discussing the admission of this testimony, the court expressed the opinion that the testimony was ...
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