Smith v. State

• Decision Date: 23 October 1947
• Docket Number: 15969.
• Citation: 45 S.E.2d 267,202 Ga. 851
• Parties: SMITH v. STATE.
• Court: Georgia Supreme Court

45 S.E.2d 267

202 Ga. 851

SMITH v. STATE.

No. 15969.

Supreme Court of Georgia

October 23, 1947

Syllabus by the Court.

The circumstantial evidence in this case was sufficient to authorize the jury to reject that part of the defendant's statement tending to show that he committed the homicide under circumstances of justification or mitigation, and the jury was authorized to find the defendant guilty of murder. No error is shown in the special grounds of the motion for new trial.

Victor Smith was indicted for the murder of Roy Oliver Downer. He was convicted with a recommendation of mercy. His motion for new trial, as amended, was denied by the trial court, and the exception is to such denial.

The evidence for the State showed: Mr. and Mrs. O'Hern lived on McGarrah Street in the City of Americus on February 27 1947, the date of the homicide. They were awakened in the early morning on such date by the barking of their dog. Mrs O'Hern testified that: 'After I woke I heard voices on the outside, heard someone talking; I could not say how many were talking; I could not say there was more than one voice they were talking low; from hearing them talk I could not distinguish anything that was said; the voice I heard was not distinct enough to where I could form any impression as to whether it was a fussy noise or distressful noise; I did not at any time notice a rise or lowering in that voice; the voice I heard was approximately the same volume and sound all the time; that voice seemed to be in the same place all the time; * * * after I heard them talking there in the same tone the next thing I heard I thought something hit the porch; it sounded like a folded paper; * * * I did not hear anything else after I heard that until I heard the shot; it was just a few seconds from the time I heard something that sounded like hit the porch * * * before I heard that shot, a second or two; when I heard that shot it sounded like a gun shot; * * * after I heard whatever it was shoot I did not hear any talking out there; after I heard the gun shoot one time in just a few seconds it shot three or more times; * * * as soon as that gun fired three times a car left; * * * I did not hear a car door slam.' Mr. O'Hern testified in part: 'It was cold that morning when I heard those shots fire; as soon as I got to the door I opened the door of my house and I saw an object out there; it was very dark; I could not tell what the object was when I saw it, it was so dark; I stepped back and got my flashlight and shined it out the door and noticed it was a human body out partially on the sidewalk and in the street; * * * when I found it was a human body I asked her [Mrs. O' Hern] to call the police.'

Deal Jordan, Captain of the Police Department of the City of Americus, testified that: Mrs. O'Hern called him to report the body in front of her home, and he and another policeman went to investigate it. He received the call between 4:30 and 4:45 o'clock on the morning of February 27. He found the body of a man lying with part of his head on the sidewalk and his feet hanging off the curb. The deceased was Roy Oliver Downer. The witness further testified in part: 'Sometime after that Victor Smith was brought down to the scene by somebody; two policemen brought him down, Mr. Lawhorn and Mr. Countryman; * * * I heard Mr. Victor Smith at that time make some statement to somebody relative to how that man got killed; I asked him; I did not threaten him in any way, offered him no reward or inducement, and did not put him in the slightest fear of injury; he made that statement of his own volition voluntarily; when they came down there in the car I walked out to the car; * * * and says, 'What is the trouble, Vic?' and he says, 'This boy was going to whip me;' and said, 'We stopped,' and said he did not like it a damn bit, but he did not say what he did not like, and said he came on him with a bottle of beer, said Vic hit Downer side of his head with the pistol, and that did not stop him and he shot him, said he chunked a bottle of beer at him and hit the side of his car; he said he was going to whip him there, said he stopped there, was going to whip him there; he did not tell me where he was going or intended to do; * * * nobody said anything to me about taking anybody home; he said Downer was going to whip him anyhow, and said he slapped him side the head with his pistol, and that it did not stop him and he shot him; * * * when they drove down in the car I walked out to the other car where he was at and says, 'What is the trouble Vic?' and he says, 'This boy, we stopped out here, and he said he was going to whip me,' said he did not like it a damn bit, and said, 'I slapped him side the head with my pistol and that did not stop him,' and said, 'He chunked a bottle at me and I shot him;' that is the way he said it; he said he chunked the bottle at him; he said he shot him after he said he chunked the bottle at him; * * * he said that bottle hit the side of the car. Acting upon what Mr. Smith told me, I made an examination of Victor Smith's automobile that day; I did not see any dents or bruises on that car at all; he told me he hit the side of the car with the bottle; I found nothing on that car at all to indicate it had been struck; I smelled no beer on that car; * * * he did not tell me whether the bottle was full of beer or an empty beer bottle; * * * Victor Smith was drinking that morning when I saw him and heard him talk; he was not to say down drunk, but he was pretty full of whisky; * * * he did not say he was coming on him with the bottle before he chunked it, just said he chunked the bottle at him; he did not say where he was.'

Officer L. A. Lawhorn testified: On the morning of the homicide he received a call to go to where Victor Smith lived, that Smith had just shot a man. When he arrived there, Victor Smith was there, fully dressed, and he and officer Countryman took Smith in custody. Countryman asked Smith what was wrong, and Smith said that he just shot a man. Lawhorn asked him why he shot him, and Smith said that the man was going to whip him. He testified further in part as follows: 'Mr. Victor Smith stated that he was coming down McGarrah Street in his automobile; Mr. Downer was with him; he said, when they were coming down McGarrah Street Victor Smith told the man in the car with him he was going by and tell his wife where he was going; he did not use the name Downer; he started on by and Mr. Downer says, 'No, you are not going;' and he says, 'Yes, I am,' and he says, 'No, * * * you ain't,' and he made him stop the car, and the other man got out of the car and come around the back of the car with a bottle in his hand; he said the other man struck at Mr. Smith with the bottle; Mr. Smith said he was on the ground then; they had both got out of the car; he said he shot one time straight up thinking maybe that would scare him and stop him, and said Mr. Downer hauled off and threw the bottle then, and he said he shot at his body; he did not say exactly what the bottle hit when he threw the bottle; he did not claim it hit him and then he shot him; when I had him in custody he was pretty full; he had just all he could tote; at the time he came out there to the car to get in he was wobbling; that was when we put him in the car to take him down to the scene; we asked him down there who the dead man was; he said he did not know who the boy was, never had seen him before.'

Sheriff Jack McArthur testified: He investigated the homicide at approximately 5 o'clock a. m.: 'The weather was cold * * * I saw no one in his shirt sleeves but Mr. Downer, the dead man; he had on a grayish blue suit of clothes without the coat, had on his pants and vest and shirt sleeves with his sleeves rolled up about two rolls; * * * Roy Oliver Donwer was dead when I got there; I saw some blood on Roy Oliver Downer's left ear, congealed blood, and also saw a bullet hole right along there in the left back of his clothes.' Several days after the burial of the deceased, the body was removed and an autopsy was performed, which he attended. On the morning of the homicide, after the witness put Smith in jail, he went out to the place operated by Smith, known as 'Vic's Place.' An automobile was parked at that place, which was later identified as the automobile of Roy Oliver Downer. He found a coat at Vic's Place of the same color and texture as the pants and vest on the deceased. He found a woman's blouse there that had what appeared to be blood on it. He testified in regard to Smith's pistol and the wounds of the deceased in part as follows: 'I got the pistol that Victor Smith had on that occasion that Roy Oliver Downer was shot with; it was a thirty-eight long Smith and Wesson; * * * from having seen the wound out there on the body of Roy Oliver Downer on McGarrah Street and from having seen those wounds I narrated at the autopsy and the experience I have had with pistols and firearms, I formed an opinion as to the cause of Roy Oliver Downer's death; I thought he was killed from that pistol from that wound, in my opinion, that went in the left shoulder; from my experience that I have had with handling firearms and the wound in the back of that man's left shoulder, Roy Oliver Downer was shot from above; he had to be shot from above where he was; he was shot from the back side; * * * Roy Oliver Downer could not have been shot from the front; * * * both those pistol wounds that I saw were made from the back side; for the man to be shot with the entrance would being lower than the exit wound, he would have to be lower than the man that was shooting him; he would either have to be down or lower than the man that was shooting him; if Roy Oliver Downer had been standing up and the man who shot...