Thornton v. State

• Citation: 287 S.E.2d 749,161 Ga.App. 296
• Decision Date: 17 February 1982
• Docket Number: No. 62468,62468
• Parties: THORNTON v. The STATE.
• Court: Georgia Court of Appeals

Page 749

287 S.E.2d 749

161 Ga.App. 296

THORNTON v. The STATE.

No. 62468.

Court of Appeals of Georgia.

Feb. 17, 1982.

James M. Wootan, Macon, for appellant.

Willis B. Sparks, III, Dist. Atty., Macon, for appellee.

CARLEY, Judge.

Appellant was indicted for first degree arson in connection with a fire at the residence of Willie Joe Patterson located at 930 Tatnall Street, Macon, Bibb County, Georgia. Following a jury trial appellant was convicted and sentenced to five years in the penitentiary. He appeals.

The evidence adduced on behalf of the state would authorize the jury to find the following: On the night of November 15, 1980 someone, without permission, deliberately set fire to the residence of Mr. Patterson. Between the hours of 9:00 and 10:00 p. m. on the night of the fire, appellant and Mr. Patterson engaged in a brief altercation at a pool hall where Mr. Patterson was employed. After the altercation appellant told Mr. Patterson, "you'll pay for this" and then left the premises. It was shortly after this incident involving appellant that Mr. Patterson was notified of the fire.

Appellant was placed at the scene of the crime by Terry Miller who testified that, on the night of the fire between 9:30 p. m. and 10:00 p. m., he saw appellant sitting on the steps outside the residence of Mr. Patterson. Cynthia Yates testified that on the night in question and at a time after 10:00 p. m. but before 10:30 p. m., she observed appellant walking between Mr. Patterson's residence and the adjoining building and that appellant held a lit, twisted newspaper close to his face. Ms. Yates described the man as wearing a plaid shirt and having a noticeable pink spot on his lip. Ms. Yates further testified that, although at the time she did not know the name of this man, she did recognize him as someone she had seen on several previous occasions. In addition to Ms. Yates' testimony, Mr. Patterson's next-door neighbor testified that she saw someone, whom she could not identify, with "something lit in their hand" between her residence and Mr. Patterson's between 9:30 p. m. and 10:00 p. m. on the night in question.

1. Appellant enumerates as error the denial of his motion for directed verdict of acquittal which was based on the assertion that the testimony of Cynthia Yates was so incredible as to be unworthy of belief. Appellant argues that without the Yates testimony, the evidence would establish only appellant's presence at the scene of the fire, and, thus, would be insufficient to support the verdict.

Ms. Yates testified that she observed appellant's face by the light from the burning newspaper which she described as being held in front of appellant's face and producing "a big flame". Apparently, Ms. Yates' recognition of appellant as a person she had seen before was partially based upon her alleged observation of a pink spot on the lip. Although Ms. Yates testified that she was 20 feet from the man she observed, there was testimony from an investigator that the point at which Ms. Yates apparently made her observation was actually 97 1/2 feet from the place where the man allegedly stood.

While recognizing the firmly entrenched principle that the credibility of a witness is a matter for the jury, appellant insists that Ms. Yates' testimony is so incredible that it should have been declared, as a matter of law, to be unworthy of belief. In support of this contention, appellant cites Oakes v. State, 201 Ga. 365, 39 S.E.2d 866 (1940) for the proposition that "courts and juries are not bound to believe testimony as to facts incredible, impossible, or inherently improbable." However, we find appellant's reliance upon Oakes, supra to be misplaced. The aforesaid language relied upon by appellant and recited in Oakes is a quotation from Patton v. State, 117 Ga. 230, 43 S.E. 533 (1902) and is stated completely as follows: " 'The law recognizes that there may be evidence pointing to guilt, without that evidence being sufficient to warrant conviction. In testing the sufficiency of evidence, this court cannot consider the credibility of witnesses, but it may consider the nature of the testimony, and whether or not it should be treated as incredible because purporting to prove facts impossible. Courts and juries are not bound to believe testimony as to facts incredible, impossible, or inherently improbable. Great physical laws of the universe are witnesses in each case, which cannot be impeached by man, even though speaking under the sanction of an oath.' " (Emphasis supplied). Oakes, 201 Ga., supra at 374, 39 S.E.2d 866.

The above, underscored language was interpreted by the Supreme Court in Merritt v. State, 190 Ga. 81, 87, 8 S.E.2d 386 (1940) as follows: "[W]e do not understand such language to imply that this court should weigh evidence against evidence and invade the province of a jury by deciding what evidence will be accepted and what will be rejected. In those cases where testimony is given under oath which is irreconcilable with 'the great physical laws of the universe,' such a conflict completely destroys the testimony, and in that event this court can properly say that there is no testimony."

In the instant case, Ms. Yates did not testify that she recognized appellant in total darkness at a considerable distance. In our view there is nothing inherently impossible in her testimony so as to make it irreconcilable with "the great physical laws of the universe" and, thus, "completely destroyed". See Booker v. State, 50 Ga.App. 66, 176 S.E.2d 917 (1934). Bell v. State, 71 Ga.App. 430, 433, 31 S.E.2d 109 (1944). The record, at most, discloses a discrepancy in the distance testified to by Ms. Yates. However, this discrepancy merely created a possible discrediting factor which was before the jury in determining the weight and credibility to be given her testimony. Overton v. State, 230 Ga. 830(3), 199 S.E.2d 205 (1973); Smith v. State, 132 Ga.App. 691, 693(5), 209 S.E.2d 112 (1974). Likewise, we recognize that while it might be questionable whether appellant could observe a pink spot on someone's lip under the described circumstances, a jury in resolving disputed issues of fact is authorized to believe part of the testimony of a witness and to reject another part thereof. Payne v. State, 74 Ga.App. 646, 659, 40 S.E.2d 759 (1946).

The trial court properly charged the jury concerning impeachment, credibility and the weight to be given the testimony of all witnesses. It was for the jury to determine, in light of the court's instructions, whether the testimony of Ms. Yates was to be believed. The jury weighed the evidence, reconciled the conflicts and found appellant guilty. Upon our review of the record, we find that a rational trior of fact could reasonably have found from the evidence presented proof of appellant's guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

For the foregoing reasons, the trial court did not err in denying appellant's motion for directed verdict of acquittal.

2. Appellant's contention that the trial court erred in denying his motion to have the jury view the scene of the fire during the hours of darkness is without merit. The matter of a jury view is discretionary and the record does not disclose any abuse of that discretion. Sutton v. State, 237 Ga. 418(3), 228 S.E.2d 815 (1976).

Judgment affirmed.

BANKE, J., concurs.

DEEN, P. J., concurs specially.

DEEN, Presiding Judge, concurring specially.

While concurring fully with all that is said in the majority opinion, several observations are appropriate. In this case we are called upon to address evidence and testimony as to facts incredible, impossible, or, inherently improbable.

There are generally two types of "incredible" evidence.

1. Evidence in relationship to natural and physical laws of the universe that is "incredible" :...