Redfield v. State

• Decision Date: 04 January 1978
• Docket Number: 32908,Nos. 32907,s. 32907
• Citation: 240 Ga. 460,241 S.E.2d 217
• Parties: Queselle REDFIELD, Jr. v. The STATE. J. B. STONE v. The STATE.
• Court: Georgia Supreme Court

Page 217

241 S.E.2d 217

240 Ga. 460

Queselle REDFIELD, Jr. v. The STATE.

J. B. STONE v. The STATE.

Nos. 32907, 32908.

Supreme Court of Georgia.

Jan. 4, 1978.

Harrison, Jolles, Miller & Bush, Henry A. Miller, Augusta, for redfield.

Leiden & Butler, Terrence P. Leiden, Augusta, for Stone.

Richard E. Allen, Dist. Atty., Evita A. Paschal, Asst. Dist. Atty., Augusta, Arthur K. Bolton, Atty. Gen., James L. Mackay, Asst. Atty. Gen., Atlanta, for appellee.

MARSHALL, Justice.

The defendants, tried jointly, appeal from their convictions of murder and their life sentences.

1. The verdict was authorized by the evidence as to both appellants.

The corpus delicti was established by eyewitness testimony that appellant Stone, with the aid of appellant Redfield, shot the victim twice under circumstances of express and implied malice. The apparent motive for the shooting arose from the fact that Stone recently had been forceably evicted from his apartment by his landlord, the victim. The state's expert witness, Dr. Tate, testified that the victim had died two weeks after the shooting, of pulmonary embolus secondary to wounds consistent with bullet wounds, in one of which a bullet was found. Dr. Tate also testified that there was almost no likelihood of death from this disease for a man of the victim's age and physical condition. "Where one inflicts an unlawful injury, such injury is to be accounted as the efficient, proximate cause of the death, whenever it shall be made to appear, either that (1) the injury itself constituted the sole proximate cause of the death; or that (2) the injury directly and materially contributed to the happening of a subsequent accruing immediate cause of the death; or that (3) the injury materially accelerated the death, although proximately occasioned by a pre-existing cause." Wilson v. State, 190 Ga. 824, 829, 10 S.E.2d 861, 865 (1940); Ward v. State, 238 Ga. 367, 369, 233 S.E.2d 175 (1977). The fact that this expert's opinion may have been based in part on hearsay, goes to his weight and credibility, not to its admissibility. Gulf Refining Co. v. Smith, 164 Ga. 811(4), 139 S.E. 716 (1927); Herrin v. State, 138 Ga.App. 729(7), 227 S.E.2d 498 (1976).

The appellants argue that the verdict is contrary to the evidence and against the weight of the evidence, because five alibi witnesses allegedly established the appellants' presence elsewhere than the scene of the crime at the time of its commission. The testimonies of these witnesses were inconsistent in material respects both with themselves and with each other. " In determining upon which side of a disputed issue the evidence preponderates, the credibility, and not the number, of the witnesses introduced pro and con, is the proper test." S. F. & W. R. Co. v. Wideman, 99 Ga. 245(4), 25 S.E. 400 (1895). Counterbalancing these witnesses were eyewitnesses who knew the appellants and who observed them under sufficient lighting conditions to identify them while shooting the victim and fleeing from his store.

2. The trial court did not err in denying the defense motion for new trial based on the ground of newly-discovered evidence. The "new" evidence consisted of medical records of state's witness Willie Gross showing that he had been confined at Battey State Hospital for tuberculosis, had been an outpatient at the "MCG" (Medical College of Georgia?) Clinic, and should be seen for a follow-up examination one month after discharge. Even assuming that this evidence was relevant and prejudicial, it was not newly-discovered, as it was part of the defendant Redfield's Exhibit 2, and was presumably examined by both the trial judge and the jury.

3. The trial judge did not err in allowing witness Willie Gross to testify without a prior examination of mental capacity. "The objection to competency, if known, shall be taken before the witness is examined at all." Code § 38-1611. The trial judge does not have to conduct a preliminary examination of the witness until an objection is interposed. Bryant v. State, 236 Ga. 790(1), 225 S.E.2d 309 (1976). Everyone is presumed competent to testify, and even where a person is shown to have been insane, or to have been adjudged insane previously and is presently in a state mental hospital, this does not necessarily render such person incompetent to testify. Conoway v. State, 171 Ga. 782(3), 156 S.E. 664 (1931). The defendants' failure to interpose a timely objection to the witness' competency at trial, either before or after the witness testified, precludes this objection on review. See Clenney v. State, 229 Ga. 561(3), 192 S.E.2d 907 (1972). All of defense questions to witnesses went to the credibility, rather than the competency, of witness Gross.

4. The prosecution, in an effort to show the admitted flight of defendant Stone following his release on bond, elicited, perhaps inadvertently, testimony of Stone's having been charged initially with aggravated assault with intent to murder and criminal attempt armed robbery. Defense counsel moved for mistrial on the ground that Stone stood neither charged nor indicated for criminal attempt armed robbery. The trial judge gave curative instructions to the jury and denied the motion.

Stone was initially charged with having committed these two other crimes. The aggravated assault charge was changed to a murder charge after the victim died. Even assuming that the...