Robertson v. State, 36606

• Decision Date: 02 April 1957
• Docket Number: No. 36606,No. 2,36606,2
• Citation: 98 S.E.2d 199,95 Ga.App. 445
• Parties: Herman ROBERTSON v. The STATE
• Court: Georgia Court of Appeals

Page 199

98 S.E.2d 199

95 Ga.App. 445

Herman ROBERTSON v. The STATE.

No. 36606.

Court of Appeals of Georgia, Division No. 2.

April 2, 1957.

Syllabus by the Court.

The general and special grounds are without merit.

The defendant was indicted for murder in Bibb Superior Court in the slaying of Ira Taylor. The evidence of the State discloses a brutal killing. The deceased was run down and stabbed in the back after he ascended the doorsteps into his house. The defendant and his brothers named in the indictment followed the deceased into his house and cut him to death. There is no evidence that the deceased had a weapon of any kind.

The defendant was tried alone, although there were ohter defendants involved in the same transaction. The jury returned a verdict of guilty of voluntary manslaughter. The defendant was sentenced to a minimum of ten years and a maximum of fifteen years in the penitentiary. He filed a motion for a new trial on the statutory grounds and later added nine special grounds by amendment.

Jacobs & Gautier, T. A. Jacobs, Macon, for plaintiff in error.

Wm. M. West, Solicitor-Gen., Hal Bell, Asst. Solicitor-Gen., Macon, for defendant in error.

GARDNER, Presiding Judge.

1. The evidence amply supports the verdict as to the general grounds.

2. Special ground 1 alleges that the court erred in admitting certain testimony of Mr. L. H. Chapman, the Coroner of Bibb County. In order to get a clear view of this point we quote questions and answers immediately preceding and following those to which objections are made. The questions and answers immediately preceding the ones of which complaint are made in this special ground are:

'Q. Did you examine the person of Ira Taylor, with reference to what personal effects he had on his person? A. Yes, sir.

'Q. Did he have a pistol, knife or other weapon? A. No, sir.

'Q. Did you see any pistol or knife in the room that you were in? A. No, sir.

'Q. Did you see his wounds? After he was removed to the undertakers? A. Yes, sir.'

The questions and answers in the motion are on cross-examination:

'Q. Who took that knife off of him and give it back to his wife? A. I couldn't tell you, colonel.

'Q. You didn't know she was given back the knife at the funeral home that was taken off of his person? A. No, sir. I didn't take it because I wouldn't give it to her if I had taken if off of her.'

On redirect:

'Q. Wasn't there a knife on him? A. No, sir.

'Q. If you heard of it before that question that any knife was ever taken from him? A. That is the first time I ever.

'Q. Is that the first you ever heard of any suggestion of that? A. Yes, sir.'

The questions and answers following the ones which appear in the motion are:

'Q. You haven't talked to his wife about that have you? A. I talked to her that night.

'Q. Did she tell you anything then about getting a knife? A. No, sir, she followed me to the undertaker's.'

We have underscored the question and answer to which objection is made particularly. This special ground is not meritorious.

3. Special ground 2 assigns error because it is contended that the court erred in refusing to grant a mistrial when the solicitor general asked Alfonso Robertson, a witness for the defendant, while on cross-examination, whether or not the witness knew the defendant carried a pocket knife. The specific question was: 'Were you with him [Henry Robertson, Jr.] the night that he cut Willie Dennis to death with a pocket knife?' The question was never answered. Counsel for the defendant stated: 'Your Honor, please, I think that is wholly immaterial and irrelevant whether he carried a pocket knife six months ago or a year ago. The question is whether or not he had a knife that night or not.' The court stated in this connection: 'I am going to sustain the objection and I am going to rule that testimony out, gentlemen. You will not consider that at all in this case but disabuse your minds completely of that. I overrule the motion for a mistrial.' Counsel for the defendant urged that the court should have rebuked counsel and that the statement of the court was too mild. In view of the question propounded to which no answer was elicited, this was not erroneous. See Trammel v. Atlanta Coach Co., 51 Ga.App. 705(5), 181 S.E. 315, Locklear v. State, 52 Ga.App. 87, 182 S.E. 534, and Boone Company v. Owens, 54 Ga.App. 379(3, 4), 187 S.E. 899. Strickland v. State, 167 Ga. 452, 462(7), 145 S.E. 879, cited by counsel for the defendant, shows that the solicitor general asked a question which was improper on the face of it and the ruling in that case is not applicable to the facts of the instant case. This special ground sets out as a reason for contending that the overruling of the motion for a mistrial was erroneous: 'The witness, Henry Robertson, was a material witness for the defendant and could not be impeached by specific acts, and the solicitor knew he had been tried and acquitted for killing Willie Dennis, and this question was highly improper and unfair as movant contends, and the court should have declared a mistrial on movant's motion.' The record reveals that the questions and answers of which complaint is made in this special ground were made to and by Alfonso Robertson and not Henry Robertson as the paragraph of this special ground quoted hereinabove contends. As to this special ground in general, see Coggins v. State, 57 Ga.App. 710(4), 196 S.E. 149, Thompson v. State, 58 Ga.App. 593(1), 199 S.E. 568, and Howard v. State, 60 Ga.App. 229, 4 S.E.2d 418. There are many other decisions which hold to the same effect. See Kennedy v. State, 51 Ga.App. 543, 181 S.E. 139, wherein this court said: 'In Williams v. State, 15 Ga.App. 311, 82 S.E. 817, it was said: 'When in a criminal case, not only the evidence, but the defendant's statement as well, demanded the verdict rendered, a new trial will not be granted even though the judge may have committed errors in his charge to the jury, in rulings on evidence, and in refusing to order a mistrial on account of improper argument of counsel. If the jury reached the only result which was legally possible in the case, the judgment of the trial judge will not be reversed merely for the purpose of allowing the case to be heard again, in order that the same result may be more technically reached.' See, also * * * Usry v. State, 17 Ga.App. 268, 86 S.E. 417; Tyre v. State, 35 Ga.App. 579, 134 S.E. 178; Bernolak v. State, 18 Ga.App. 7, 89 S.E. 302; Haupt v. State, 108 Ga. 60(2), 33 S.E. 829.' In view of the whole record and what the court stated regarding the objection covered in this special ground there was no error as contended for in this ground.

4. Special ground 3 assigns error because it is alleged that the court erred in allowing in evidence certain testimony of the defendant's mother and shows that while she was on the stand on cross-examination she was asked questions regarding the reputation of brothers of the defendant, and specifically Henry Robertson, Jr. Counsel for the defendant made a portion to exclude the testimony. The court did so. Counsel stated: 'I think that is proper, Sir, that is my motion.' The court stated: 'I think I will rule that testimony out. I'll instruct the jury that they not consider any evidence at all concerning any difficulty or altercation between Henry Robertson and Willie Denson; also instruct the jury not to consider any testimony of the mother as to whether or not she would testify or not testify as to the good character of Henry Robertson. I will rule out all of her testimony as to * * *' On this point the court charged the jury, at the request of counsel for the defendant as follows: 'There has been certain testimony introduced concerning some alleged difficulty or altercation between a witness Henry Robertson and one Willie Denson. I am going to withdraw that testimony from the consideration of the jury and ask you not to consider that testimony at all but to disabuse your minds completely of it and give it no consideration. Further, I am going to instruct the jury that whether or not the mother would or would not testify as to the good character of her son, Henry Robertson, is no question in this case at all, I am going to withdraw that from the jury and ask you not to consider but disabuse your minds completely of any testimony that she might have given concerning whether or not she would testify to the good character of her son, Henry Robertson.' Counsel contends that the court should have, of its own motion, declared a mistrial or should have rebuked counsel severely and further that the court was too mild in withdrawing the testimony. The court granted everything counsel asked for and counsel so admitted this in open court. This ground shows no reversible error.

5. Special ground 4 assigns error because it is alleged that the court erred in admitting in evidence certain testimony of the defendant's mother regarding certain specific acts of the defendant going to the issue of his reputation. This was on cross-examination that the solicitor general propounded a question to the mother as to whether or not the defendant had an illegitimate child by a non-married Negro woman by the name of Naomi. She had already testified, on direct examination, that the defendant had a good character. On cross-examination it was admissible for the State to go into specific acts in order to show that the defendant did not have a good character. This special ground...