Thurmond v. State, 22631
| Citation | 138 S.E.2d 372,220 Ga. 277 |
| Decision Date | 29 September 1964 |
| Docket Number | No. 22631,22631 |
| Parties | Herbert THURMOND v. The STATE. |
| Court | Supreme Court of Georgia |
Syllabus by the Court
1. The general grounds in a motion for new trial, not argued orally or by brief of counsel, are treated as abandoned and raise no question for consideration by this court.
2. Where a defendant is on trial only for the murder of a woman, evidence that her body contained a 6 1/2 month old fetus which was dead, is admissible as part of the res gestae or where it tends to show the animus of the defendant.
3. It is not an abuse of discretion of the trial judge to allow an eight year old child to testify where from the evidence it appears that the child understood the nature of an oath and was competent to testify.
4. It is not a good assignment of error on a judge's charge, which states a correct principle of law applicable to the case, that some other appropriate instruction was not given.
5. Where the evidence shows that a defendant is either guilty of murder or acted in self defense, the failure of the court to charge the law of manslaughter is not error.
Herbert Thurmond was indicted, tried and convicted of murder with recommendation in Barrow Superior Court and was sentenced to life imprisonment. To the denial of his motion for new trial, as amended, on the general and eight special grounds he excepts.
Davis & Davidson, Jefferson, for plaintiff in error.
Alfred A. Quillian, Sol. Gen., Winder, Eugene Cook, Atty. Gen., Rubye G. Jackson, Asst. Atty. Gen., Atlanta, for defendant in error.
1. The general grounds which were not argued orally or by brief of counsel for plaintiff in error are considered abandoned. Reece v. State, 210 Ga. 578(4), 82 S.E.2d 10; Bryan v. Barnett, 205 Ga. 94(6), 52 S.E.2d 613; Code § 6-1308.
2. The special grounds will be considered in the order in which they were argued in plaintiff in error's brief.
Special ground 7 complains of the admission over objection of certain testimony of Dr. George Parkerson. Dr. Parkerson testified that he examined the deceased's body during the early morning of January 6, 1964; that she had been dead several hours, and that her death was caused by bullent wounds in the left lung, the heart and right lung. Over objection of counsel he testified that after examining the bullet wounds, he 'also opened her abdomen and found in the abdomen that her uterus was enlarged, that she was pregnant, and the fetus was, of course, dead and appeared to be approximately 6 1/2 months along in development.' The exception is to the admission of the testimony as to her pregnancy, the complaint being that the defendant was charged with the murder of the deceased and not of the unborn child and that evidence as to another crime than that for which defendant was on trial was inadmissible and highly prejudicial. The ground is without merit.
While the general rule in criminal cases is that '[e]vidence of the commission of a crime other than the one charged is generally not admissible,' it is subject to certain exceptions, 'as when the extraneous crime forms part of the res gestae; or is one of a system of mutually dependent crimes; or is evidence of guilty knowledge; * * * or where it tends to prove malice, intent, motive, or the like, if such an element enters into the offense charged.' Cawthon v. State, 119 Ga. 395, 396, 409, 46 S.E. 897, 898; Dorsey v. State, 204 Ga. 345, 349, 49 S.E.2d 886, 889. The evidence was admissible as a part of the res gestae. See Dupree v. State, 213 Ga. 348(3), 99 S.E.2d 81, where this court held that '[e]vidence that, at the time and place the defendant shot and killed the deceased, he also shot and wounded four other persons, was admissible as a part of the res gestae and to show the animus of the defendant.' Westberry v. State, 175 Ga. 115(3), 164 S.E. 905; Tucker v. State, 180 Ga. 87(1), 178 S.E. 152. The evidence as to the deceased's pregnancy was also admissible to show animus, as there was evidence that he had been seen out with the deceased a number of times on Saturday nights, and his wife accused him, while he was beating her immediately after he had killed the deceased, of having killed her 'to keep her from having your baby.' His only response to her was to tell her to shut up. In his statement he...
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