Stembridge v. State

• Decision Date: 12 July 1950
• Docket Number: No. 32911,No. 2,32911,2
• Citation: 82 Ga.App. 214,60 S.E.2d 491
• Parties: STEMBRIDGE v. STATE
• Court: Georgia Court of Appeals

Page 491

60 S.E.2d 491

82 Ga.App. 214

STEMBRIDGE v. STATE.

No. 32911.

Court of Appeals of Georgia, Division No. 2.

July 12, 1950.

Rehearing Denied July 26, 1950.

Syllabus by the Court.

The evidence authorized the verdict finding the defendant guilty of voluntary manslaughter and there being no merit in any of the special grounds, the court did not err in overruling the motion for a new trial.

The defendant, M. W. Stembridge, was indicted for the murder of Emma Johnekin. He was tried and convicted of voluntary manslaughter and sentenced to serve from one to three years in the penitentiary. His motion for a new trial based upon the usual general grounds and five special grounds was overruled, and he excepted.

Frank O. Evans, Marion Ennis, James M. Watts, Jr., all of Milledgeville, Martin, Snow & Grant, Macon, for plaintiff in error.

C. S. Baldwin, Jr., Sol. Gen., Milledgeville, for defendant in error.

MacINTYRE, Presiding Judge.

1. During the course of the trial, J. E. Jones was called to the stand as a witness for the State and testified as follows: 'I am an operator with the Georgia Bureau of Investigation and my duty is to assist the sheriffs and municipal governing authorities and superior court judges in the investigation of any criminal case in which we are invited. I was called on this case on March 7th, the night it happened, and I went around to the hospital that night and talked to Emma Johnekin and while I was there, I noticed three wounds on her. There could have been more. There was one in the right arm; there was another in the abdomen and there was another burned mark on the back on the left side. There was a bullet hole in the shoulder but I couldn't swear which side of the body it was on. It seemed as if the burned mark on her back had been caused by a projecticle from a pistol. That makes 4, three that entered the body and one that grazed her back. Emma was conscious that night. She realized the condition she was in as to the seriousness of her wounds. She had four wounds on her and appeared to be in pain. There was a marked abrasion on the right side of her head as if she might have been struck by something and the skin was broken. She was complaining about the pain she was in; had her hand over this wound in her abdomen and she was frowning in her face, showed she was in intense pain, when I went into the room. I couldn't swear how long she lived after being shot up. I went back to the hospital two days later on a trip and she was dead at that time. I asked her to tell me what had happened exactly to the best of her memory and belief. I requested that she be extremely careful in the testimony she would give me.

'Q. What did she say as to her being shot? * * * [Objection by counsel for defendant]

'By the court: Is there anything here to show that she was conscious at that time?

'Q. Was she fully conscious? A. Yes, she was fully conscious.

'Q. Was she advised of her serious condition? A. I didn't hear the doctor advise her. However, I did myself advise her of what I had heard. In other words, if I may speak a few minutes, the chief of police contacted me at the cafe down town. I was eating supper. He told me two women had been shot and were in the hospital and he had already been to the hospital or Mr. Beckum had already been to the hospital, one or the other and that they were in critical condition and they wanted me to go up and talk with them. I found Emma * * * [Objection] Did she make a statement to you as to the cause of her being shot? A. Yes, she did.

'Q. As to who shot her? A. Yes. * * *

'Q. Did you write down what she said? A. Yes.

'Q. What did she say? A. May I read it? A. Yes (Witness reads) When Mr. Stembridge and Terry came there all of us were on the porch. He asked about Richard and Johnny told him Richard was not here. 'Where is Richard?' 'He is working.' And Johnny changed the subject, Johnny said 'will pay you, Mr. Stembridge, for what I owe you. I went to work at the State.' 'Haven't you been working there all the time?' 'No, sir.' Then he asked Johnny, 'Will you sign a paper for Richard?' 'No, it doesn't seem right.' And she spoke up, 'Lord have mercy,' said 'He has got on brass knucks' and turned to Mr. Stembridge and said, 'Haven't you?' * * * [Objection] 'He has got on brass knucks--haven't you?' He turned to go in the house. 'God damn it, what is it to you?' And he grabbed me and hit me with his knucks. He hit me on the head. Mary ran where I was and pulled him loose from me. He shot me in the hand and he shot at Mary. I went on inside the house and sat on the trunk. He came to the door and shot me in the shoulder and in the stomach. I didn't have a gun, neither a knife and Mary had neither gun nor knife. I swear this information is true. When he hit me I grabbed him and Mary pulled us apart. He had a gun and started firing. Signed, Emma Johnekin.' Counsel for the defendant objected to this statement of Emma Johnekin which the witness read into the evidence upon the ground that the proper foundation had not been laid for its admission as a dying declaration. On cross examination the witness J. E. Jones testified: 'There were other people in the room that heard her make the same groans and when I asked her the question did she realize the seriousness of her wounds and she said yes and I asked her if she knew she would probably not live through it and she said yes and when I asked her to be very careful and not to leave out anything at all, I explained to her, I even told her I was sure she didn't want to go on to her reward and have the blood of some innocent person on her because she failed to make some statement and she said yes and then she began to talk and I began writing and during that time the doctor came and put the probe into her abdomen about 14 inches down into her abdomen and as soon as he took it out I asked him what was her condition. He did not answer my question one way or the other, he went on out to the other room.' 'Declarations by any person in the article of death, who is conscious of his condition, as to the cause of his death and the person who killed him, shall be admissible in evidence in a prosecution for the homicide.' Code, § 38-307. 'Consciousness on the part of the deceased that he was dying and was in extremis may be inferred, not only from his statements, but also from the nature of the wound and other circumstances. * * * The actual period of survival after making the declaration is not controlling. * * * The question does not depend upon the length of time between the declaration and the death of the declarant, but upon the declarant's mind at the time of the declaration, and his belief that he is in a dying [condition].' Johnson v. State, 169 Ga. 814(3), 152 S.E. 76, 81. 'It is not necessary for the state to show affirmatively that a person who had been shot said he was in a dying condition, in order to admit proof of his declarations, if in point of fact he was in articulo mortis, and the circumstances were such that he must have known that he was in a dying condition.' Washington v. State, 137 Ga. 218, 73 S.E. 512. 'On the trial of a murder case, if at the time of making declarations the condition of the wounded person making them, the nature of his wounds, the length of time after making the declaration before he expired, and all the circumstances make a prima facie case that he was in the article of death, and conscious of his condition when he made the declarations, such declarations should be admitted in evidence by the court under proper instructions to the jury.' Green v. State 154 Ga. 117, 118(7), 137, 113 S.E. 536, 545. In the instant case the preliminary evidence was sufficient to establish a prima facie foundation for the admission of the evidence of the witness Jones as to the statement made to him by the deceased as the ultimate determination as to whether the deceased was in the article of death and realized her condition is for the jury and it appears from the record that the court fully instructed the jury on this subject. Parker v. State, 197 Ga. 340, 29 S.E.2d 61; Emmett v. State, 195 Ga. 517, 25 S.E.2d 9; Plummer v. State, 200 Ga. 641, 38 S.E.2d 411; Morakes v. State, 201 Ga. 425, 436, 40 S.E.2d 120; Satterfield v. State, 68 Ga.App. 7, 21 S.E.2d 861. It follows that the court did not err in admitting in evidence the testimony objected to in this ground.

2. In special ground 3, error is assigned upon the admission of the following evidence over objection: 'Mr. Ellis, did you take any photographs or pictures of the body of Emma Johnekin, the deceased in this case? / Yes, I did.

'Have you got those pictures with you? / Yes.

'Did you take this picture? / Yes, I did my self.

'Where was the woman when you took these two pictures--was she dead then? / Yes.

'Did you see this one made by Mr. Stancill? / Yes.

'Where was the body then? / In the undertaking establishment at Eatonton.

'Come down here--I will ask you whether or not this spot is the bullet wound in the back of her shoulder? / Yes.

'Did you see this before she was dead, those holes? / Yes.

'On her back in this picture, I will ask you whether or not that is a burned place where the bullet evidently crossed her back? / Yes, I would say so.

'This cut open place here on her body is what? / That is were they cut it open to get the bullet out of her pelvis.

'This picture here of her abdomen, you see three holes there? / Yes.

'What are they? / This one here goes right into the abdomen and this one just goes in and comes back out and goes back in.

'It went in and came out and then went back in? / Yes.

'Explain that wound on her to the jury? / The bullet went in here and came out and went back in there.'

At the time and as soon as this evidence and the pictures were offered the defendant's counsel objected 'to pictures of the body of the deceased being exhibited to this jury. It is prejudicial to this jury, improper and I move...