Robinson v. State

• Decision Date: 17 April 1924
• Docket Number: 4173.
• Citation: 122 S.E. 886,158 Ga. 47
• Parties: ROBINSON ET AL. v. STATE.
• Court: Georgia Supreme Court

122 S.E. 886

158 Ga. 47

ROBINSON ET AL. v. STATE.

No. 4173.

Supreme Court of Georgia

April 17, 1924

Syllabus by the Court.

An answer which does not state a conclusion should not be ruled out on the ground that the question, to which such answer was a reply, sought to elicit a mere conclusion.

Where a question sought to elicit and the answer stated a conclusion of the witness, for which reason both were objectionable, the admission of such evidence does not require the grant of a new trial, where the witness stated the facts upon which the conclusion was based.

The court did not err in admitting the alleged statements of one of the defendants, set out in the third division of the opinion, on the ground that it was not shown that they referred to the deceased, it being a question for the jury whether they referred to the deceased.

The court did not err in giving to the jury the instructions set out in the fourth division of the opinion.

The court did not err in using the word "will," instead of the word "may," in giving in charge the principle laid down in the Civil Code 1910, § 5732.

The court did not err in failing to charge the jury, in connection with his charge upon the law of alibi, that if they believed that the defendants, or either of them, had established his or their alibi to the reasonable satisfaction of the jury, they should acquit the defendant or defendants so establishing his or their alibi; the court having charged the law of alibi as a defense, and it being incumbent on the defendants, if they wished the above instruction, to have specifically requested it.

The court did not err in refusing to grant to counsel for defendant additional time for argument before the jury.

The court did not err in failing to give in charge to the jury the instruction set out in the eighth division of the opinion, this instruction being substantially covered by the charge as given.

The court did not err in failing to give in charge to the jury the instruction referred to in the ninth division of the opinion, because such instruction, if correct, was not applicable under the facts.

The alleged newly discovered evidence does not require the grant of a new trial.

The verdict is supported by the evidence.

Error from Superior Court, Murray County; M. C. Tarver, Judge.

Leonard Robinson and John W. Walker were convicted of murder, and they bring error. Affirmed.

Porter & Mebane, of Rome, and C. N. King, of Chatsworth, for plaintiffs in error.

Joe M Lang, Sol. Gen., of Calhoun, Geo. M. Napier, Atty. Gen., and T. R. Gress, Asst. Atty. Gen., for the State.

HINES J.

John W Walker and Leonard Robinson were jointly indicted and tried for the murder of J. B. Brackett. The jury found them guilty. They moved for a new trial, which was refused. To this judgment they excepted and brought the case to this court.

1. The wife of the deceased positively identified the defendant Walker as the person who shot and killed her husband. The defendants contended that they were not the perpetrators of the murder, and attempted to establish an alibi. Tom Parker was sworn as a witness for the defendant; and upon his cross-examination the solicitor general propounded the following question, and the witness made the following answer:

"Q. She described this negro, except the gold teeth? A. She said he was a black negro."

Counsel for the defendants moved the court to rule out said question and answer on the ground that the question called for a conclusion. The court overruled this motion. An answer which does not state a conclusion should not be ruled out on the ground that the question which elicited it sought to elicit a mere conclusion. Certainly the refusal of the court to exclude such answer on this ground was not an error requiring the grant of a new trial.

2. John Pritchett was sworn as a witness for the defendants, and on his cross-examination the solicitor general propounded the following question and elicited the following answer, to wit:

"Q. In every other respect, except that the negro had gold teeth, the description she gave fits the negro? A. I think he fits it pretty well."

This witness was introduced for the purpose of impeaching the wife of the deceased, who had testified in behalf of the state, by showing that she had given a description of the defendant Walker in her testimony before the coroner's jury, the day after the homicide, different from what she gave on the trial of the present case. This witness repeated the description of the accused which the wife gave before the coroner's jury. While the question sought to elicit, and the answer thereto stated, a conclusion of the witness, and for this reason was objectionable, the admission of this evidence does not require the grant of a new trial; the witness having stated, in connection with this answer, the description which the witness whom it was sought to impeach gave in her testimony before the coroner's jury.

3. The court overruled the objection of counsel for the defendants and permitted a witness for the state to testify as follows:

"I never saw this negro, John Walker, until he was brought to jail. I cannot tell you how long he has been here in jail. I have heard him praying in the jail, saying his prayers there in the night. I heard him praying, saying they had him accused of killing a white man. He has talked in his sleep several times. Me and Ben Brackett talked about it. He was praying when talking about being accused of killing a white man. I never heard him say any white man had made him kill that white man. He said something about killing a man, in his prayers. He went like he said he had killed a white man, but would not say for sure he said that. Me and Jim Fox listened to him one night, to see what he said. I told you that Ben Brackett and I had heard the negro in his prayer saying something like he had killed the white man. I told Ben Brackett I thought he was guilty, that he had said something about killing a white man. I know Ben Brackett. I have talked with him about this. I told Ben Brackett the way it went to me; I heard this negro say in his prayer that he killed a white man. Ben was talking to me about it. I would not tell a lie on the negro. I heard the negro say something like that. I think that is what I heard him say, something like that. In his prayer the defendant John Walker didn't say a white man made him kill him. He was praying, and he talks fine. You can't understand him really good. Me and John Fox got up against the bars and listened to him. Never talked face to face with him, except across the jail. I asked him why he killed this man, and he could not tell me. Said he never killed him, when I asked him about it. I did not tell him what I heard him say in his prayer. Me and John Fox were eavesdropping. John was over there in jail at that time. They have me accused of having too many wives. Whenever I eavesdropped, and what he said in his prayers, he never did give any names." Counsel for the defendants moved to rule out all of this testimony, on the ground that it "did not show that such prayers or statements referred to the deceased, or connected the defendant with the homicide," and for this reason was irrelevant. The objection to the admission of this evidence was without merit, it being a question for determination by the jury whether it referred to the deceased or connected the defendant Walker with the homicide. Somere v. State, 116 Ga. 535(4), 42 S.E. 779.

4. The defendants allege that the court erred in charging the jury as follows:

"If you find the defendant John W. Walker committed the offense of murder, as charged in the indictment, and that his codefendant, Leonard Robinson, was present at the time and place of the commission of the alleged offense, aiding and abetting the defendant Walker in the commission of his crime, and participating in his criminal intent to unlawfully kill J. B. Brackett, then the defendant Leonard Robinson would likewise be guilty of the offense of murder, and it would be your duty to convict him."

And in not charging in connection therewith or anywhere that--

"Even though Leonard Robinson was present at the time and place of the commission of the alleged offense of murder, and even though the jury might find that John Walker was guilty of the crime of murder, still it would be the duty of the jury to acquit the defendant Leonard Robinson, even though present, unless the evidence did show that Leonard Robinson participated in the criminal intent of John Walker, and aided and abetted John Walker in the killing of J. B. Brackett."

The ground of exception to this instruction is without merit. The instruction as given aptly, clearly, and fully covered the principle of law applicable upon this subject.

The defendants further allege that the court erred in charging the jury as follows:

"If you find the defendant John Walker committed the offense charged in the indictment, but that his codefendant, Leonard Robinson, was not present, aiding and abetting him in the commission of his unlawful act, and participating in his criminal intent, the defendant Walker could be convicted; but under these circumstances, if they be true, which is a question entirely for your determination, the defendant Leonard Robinson should be acquitted"

--without charging in connection therewith or elsewhere that even though Walker committed the offense as charged in the indictment, and even though the defendant Robinson was present at the time and place of the commission of the offense by Walker, the defendant Robinson could not be convicted unless he was, in addition to being present, aiding and abetting Walker and participating in his criminal intent to unlawfully kill J. B. Brackett. The exception to...