Rooker v. State

• Decision Date: 16 February 1955
• Docket Number: No. 18795,18795
• Citation: 86 S.E.2d 307,211 Ga. 361
• Parties: Roy Thomas ROOKER v. The STATE.
• Court: Georgia Supreme Court

Page 307

86 S.E.2d 307

211 Ga. 361

Roy Thomas ROOKER v. The STATE.

No. 18795.

Supreme Court of Georgia.

Feb. 16, 1955.

Robert Carpenter, Ferrin Mathews, T. C. Little, Atlanta, for plaintiff in error.

Paul Webb, Sol. Gen., Wm. E. Spence, Charlie O. Murphy, Atlanta, Eugene Cook, Atty. Gen., Rubye G. Jackson, Atlanta, for defendant in error.

Syllabus Opinion by the Court.

HAWKINS, Justice.

Roy Thomas Rooker was indicted in Fulton Superior Court for the murder of his wife by shooting her with a rifle. The jury returned a verdict of guilty with a recommendation of mercy. To the judgment denying his motion for new trial, based upon the general grounds and seventeen special grounds, the defendant excepted. Held:

1. It was not error to refuse to permit a witness who was being questioned on cross-examination about his investigation of the homicide to answer the question, 'Did you, after you had made an investigation of this thing, determine what, aside from this report, the provocation or justification of this matter was,' the court having correctly ruled that it was the province of the jury to determine whether or not there was any provocation or justification, and, if so, what it was. While the right of a party to a thorough and sifting cross-examination of witnesses called against him should not be abridged, Code, § 38-1705, where, as here, the question propounded called for a conclusion by the witness as to matters which could be determined only by the jury, it was properly excluded. Post v. State, 201 Ga. 81, 39 S.E.2d 1; Revill v. State, 210 Ga. 139, 78 S.E.2d 12; Denson v. State, 209 Ga. 355(3), 72 S.E.2d 725; City of LaGrange v. Pounds, 50 Ga.App. 219, 223(6), 177 S.E. 762.

2. Ground 2 of the amended motion complains that the court erred in refusing to permit counsel for the defendant to ask the State's witness Joyce Reece whether anything was said or done, in the back yard between the defendant (an uncle of the witness) and his wife (an aunt of the witness), that would indicate that the defendant was mad at his wife. An examination of the brief of evidence on page 106 of the record discloses that this witness was permitted to testify 'There was no loud or mean language used by my Uncle Roy to my Aunt Edith about him driving. They didn't act like it was nothing unpleasant about getting in the car, didn't act like they was mad. They was just going on like that'; and similar testimony of this same witness as to the appearance and demeanor of the defendant appears on pages 102, 104, and 105 of the record. Since it thus appears that testimony was given by this witness and admitted to the same effect as that sought by the question excluded, this ground is without merit. Denson v. State, 209 Ga. 355(2), 72 S.E.2d 725.

3. It was not error, as complained of in special ground 3, to admit the testimony of the witness L. S. Reece that, approximately three weeks before the homicide when the defendant made a threat to kill his wife, the defendant 'appeared to be excited and mad,' over the objection of counsel for the defendant that it was irrelevant and immaterial, has no probative value, and 'puts in issue his character when he himself hasn't put it in evidence.' Evidence that a person looked wild, seemed excited, spoke pleasantly, was in a good humor, or looked mad, all are matters of fact and not objectionable on the ground that it states conclusions of the witness. 'The signs of emotion may be described by the use of general terms, without any enumeration of particulars.' Travelers' Insurance Co. v. Sheppard, 85 Ga. 751, 12 S.E. 18, 19. Nor would the fact that the occurrence referred to by the witness took place approximately three weeks before the homicide render the testimony inadmissible because too remote. In Hill v. State, 169 Ga. 455(2, 3), 150 S.E. 587, it is held: 'The indictment in this case charging the defendant with the murder of his wife, the court properly admitted evidence tending to show the state of feeling upon the part of the husband toward his wife two or three months before the homicide with which he was charged. * * * It was within the province of the jury to decide whether the evidence of an occurrence between the accused and his wife, which showed enmity on his part toward her, was connected with the fact of the homicide, where the occurrence took place eighteen months before the date of the homicide.'

4. It was not error, as complained of in ground 5 of the motion for new trial, to exclude the question asked by counsel for the defendant on cross-examination of one of the State's witnesses, 'How many times have you ever sued or been sued in Newnan?' So far as appears from this ground of the motion, this question was wholly irrelevant to any issue on trial. In Robinson v. Murray, 198 Ga. 690(4), 32 S.E.2d 496, 505, it is held: 'The right of a party to a thorough and sifting cross-examination as to witnesses called against him is not infringed by confining such examination to matters that are relevant to the issues in the case. Daniel v. State, 182 Ga. 875(2), 187 S.E. 36; Clifton v. State, 187 Ga. 502(4), 508, 2 S.E.2d 102; Granison v. State, 49 Ga.App. 216, 174 S.E. 636; Stevens v. State, 49 Ga.App. 248(2), 174 S.E. 718.'

5. Grounds 6 and 7 of the amended motion for new trial complain of the admission of testimony by the witness Stewart A. McGlaun, concerning an arrest by him of the defendant on September 20, 1953, prior to the homicide on November 2, 1953, and the defendant's threat at that time to kill his wife because of her complaint to the officer which resulted in his arrest; and ground 11 complains of the admission of testimony by the witness Kenneth Arnold concerning the same occurrence, upon the ground that the testimony with respect to the arrest tended to put the defendant's character in issue when he had not done so himself. In Willingham v. State, 169 Ga. 142(5), 149 S.E. 887, 888, it is held: 'Nor was it error for the court to admit evidence of previous quarrels between the accused and the deceased and evidence of threats of the latter, though these threats and quarrels had been made and occurred as far back as two or three years. The length of time prior to the occurrence at which these threats had been made and the altercations had occurred would affect their probative value, but did not render them indamissible.' See also McDow v. State, 176 Ga. 764(5), 168 S.E. 869; Shafer v. State, 191 Ga. 722(1), 13 S.E.2d 798. Since evidence as to the arrest of the defendant was admissible as showing the reason for the threat made at the time by the defendant against the deceased, the fact that it incidentally tended to involve the character of the defendant would not render it inadmissible. Smith v. State, 148 Ga. 467(2), 96 S.E. 1042; Owensby v. State, 149 Ga. 19, 98 S.E. 552; Wilson v. State, 150 Ga. 285(2), 103 S.E. 682; Little v. State, 150 Ga. 728, 105 S.E. 359; Howell v. State, 162 Ga. 14(4), 134 S.E. 59.

6. Grounds 9 and 10 of the amended motion for new trial complain of the admission of testimony by Kenneth Arnold, a witness for the...