Smith v. State

• Decision Date: 19 November 1945
• Docket Number: 15280.
• Parties: SMITH v. STATE.
• Court: Georgia Supreme Court

36 S.E.2d 350

200 Ga. 188

SMITH v. STATE.

No. 15280.

Supreme Court of Georgia

November 19, 1945

Rehearing Denied Dec. 3, 1945.

Dissents and Disqualification as shown below.

Syllabus by the Court.

1. The evidence failing to show malice, either express or implied, the verdict of guilty of the crime of murder was without evidence to support it.

2. The failure to charge the law of accidental homicide was error.

3. Involuntary manslaughter in the commission of a lawful act was not involved in this case.

4. Evidence is not admissible which has for its purpose simply to bolster the testimony of another witness to be offered.

5. It was not error to refuse to permit a witness to answer, on cross-examination, the question, 'How long since you have been out of the chaingang in Fulton County?'

6. It was not error to charge the law of involuntary manslaughter in the commission of an unlawful act.

7. An assignment of error, complaining of the admission of certain evidence over objections, but failing to state what objections were urged, presents no question for decision.

Robert Lee Smith was convicted of murder, with a recommendation of mercy, on an indictment which alleged that on February 26 1945, in Oglethorpe County, he 'did then and there unlawfully and with force of arms, * * * feloniously, and with malice aforethought, with a certain red Dodge, one-ton truck, which he had and held, and operated and was driving, the same being a weapon likely to produce death, * * * make an assault upon one Harry Bowling, hereinafter referred to as the deceased, and the said Robert Lee Smith, with said weapon did then and there unlawfully, feloniously, and with malice aforethought, strike, hit, run into and against the said deceased, thereby giving the deceased mortal wounds, of which the said deceased then and there died, the operation of said truck by the said Robert Lee Smith, being then and there done at the time of driving on, over and into Harry Bowling, in a wanton and reckless disregard for human life, and in a reckless, wanton and unlawful manner, contrary to the laws of said State, the good order, peace and dignity thereof.'

The conviction rests on circumstantial and direct evidence. The evidence for the State disclosed that at about 3 p. m. on February 26, 1945, Harry Bowling was found dead on a public highway between Athens an Crawford, Ga., within the corporate limits of the City of Crawford. The body of the deceased was badly crushed and lying face downward on the pavement about midway between the center line and the shoulder of the road. Near the body, and in the direction of Crawford, there was a skid mark on the pavement, indicating that brakes had been applied on an automobile immediately after it had struck the deceased. There was a tire imprint on the back of the decedent's coat. An investigation led to the arrest of the defendant, who was found in the possession of a red Dodge truck in Hutchins, Ga., at about 6 o'clock in the afternoon of the homicide. An examination of the truck revealed that the right front tire had a tread similar to the imprint found on the deceased, and the right front fender of the truck was damaged. On the trial a witness testified that this damage to the fender existed prior to the homicide. When arrested, the defendant denied any knowledge of the homicide, but admitted that he had been driving along the road at about 2:30 or 3 o'clock that afternoon. A negro boy, who was in the truck with the defendant, also denied any knowledge of the homicide, and when questioned was told by the defendant that he had nothing to worry about since he was not driving. Later that night, the negro boy, according to the testimony of one of the arresting officers, voluntarily made a statement concerning the circumstances of the homicide.

A number of witnesses testified to the effect that they saw a truck driven by a negro on the Athens-Crawford highway near the time of the homicide. None of the witnesses testified as to the manner of the operation of the truck.

The State's case rested mainly on the testimony of Samuel Evans, who testified that on the date of the homicide he was invited by the defendant to ride with the defendant from Athens to Stephens, Ga., in a red Dodge truck in which there was a casket and other funeral equipment, which the defendant was carrying to a funeral. The witness further testified: 'I could not tell you exactly when we left Athens, as I did not have a watch. He picked me up on the corner. It was after dinner. We left Athens and started towards Stephens. Robert was driving the car; he was driving all the way. In driving this red Dodge truck from Athens to Stephens, Robert ran into and hit somebody; he hit a white man before we got to Crawford. I did not know his name then; I did not know him at the time. We were then in the city limits of Crawford. This white man, at the time Robert hit him, was on the right of the road coming towards Crawford. He was walking about two feet inside of the pavement on the right-hand side going towards Crawford. We were going in the same direction. I saw the man before he hit him. There was nothing in sight to keep Robert from seeing him. I could not tell you whether or not he did see him, as I don't know. At the time the truck struck this white man he was running about 40 or 45 miles an hour. At the time that Robert struck the while man, I said, 'Watch out, you hit a man.' Then we saw a mule, and he said, 'We ought to have hit the mule,' and I said, 'Well, he has seen his best days, just as well turn him out to eat.' He did not apply his brakes; he applied his brakes after he hit him. What I mean is he touched them. We did not stop then. He struck the man from the back and that knocked the white man down. I could not tell you whether he ran over him or not at the speed he was going. He didn't stop. After Robert said what he did about the mule and I said they might as well turn it out to graze, he didn't say nothing until he got to Stephens, Georgia. What he said then was, 'You didn't have nothing to do with it, you wasn't driving,' and he said not to talk to anybody about it. Robert said, 'You needn't say anything about it, or have anything to do with it.' He told me not to tell it; that is what he said. We didn't stop in Crawford; we slowed up in Crawford and started to cross the railroad and backed and asked some colored people if that was the road to Stephens, Georgia. We did not stop for the State patrol when we came back; we stopped at a filing station and got a nickel's worth of apples and a drink right at a corner there, and I saw a sign marked 'Hutchins, Georgia.' While we were there the State patrol came there. They talked to us about it. I did not tell them about it then. They questioned Robert and they questioned me; I don't know what they asked Robert. They questioned us separately. I told them I didn't know nothing about it. They put me in the State patrol car, and Robert came back to Crawford with the truck, and they brought us over there to this jail, and Robert said to keep my mouth shut, that is all. Robert said for me not to have anything to do with it. I was not driving the truck. Later on I gave the information about what I have told now to the State patrol. Whatever statements were made by me to the State patrol were freely and voluntarily made, without the slightest hope of reward or hope of benefit. I freely and voluntarily told what transpired. Later I went in company with this State patrol officer out to the place where the man was killed. He carried me out there and I showed him how it happened.

On cross-examination the witness testified: 'Coming into Crawford you come up a hill. I would say that you could see anybody walking up the road or coming towards you or going the other way for 300 yards when people was in the flat. I don't know where the chimneys are on the top of the hill the Crawford place; that was the third time I was ever in Crawford. As to whether on the top of the hill you can see a man almost at the turn, from the top of the hill you can seel all the way. I saw this man all the way coming down that hill, all the way from the top of the hill. As to whether I did not say anything to Robert about it, I didn't have a right to say anything about it. The man was coming towards Crawford. I said there was a mule on the other side of the highway right where we were coming up. I don't know that was about the edge of Crawford before you get to Crawford; it was a few hundred yards. I saw that mule. * * * The mule was on the side of the highway on the shoulder . * * * That was not where he struck the man. The mule was over the hill from where he struck the man. * * * I did not say anything to Robert about the man being in front of us, as he was driving the truck. I was sitting on the front seat. * * * I saw the man 25 or 30 yards before we got to him. He was on the same side we were on. As to why I did not say, 'Wait, Robert, there is a man in front of us,' I didn't know but what he saw him. * * * I told the officers I did not see any man. As to whether I told them there was not a man there, I told them I did not see any man. The reason I didn't say anything to Robert was, he was driving the truck looking just like I was. That was his business. As to what Robert was doing just before he hit him that he did not see him, before Robert got to the man he reached in the floor board. As to why he was doing that, at that time I was looking to see what he was doing. I had seen this man before we got to him. As to how far back I was when I saw this man, I would say we was 300 feet when I saw him. * * * The man was walking down the road like I might be walking down the road. No horn was tooted as I heard. If he had a horn he...