Vun Cannon v. State, 17655

• Citation: 208 Ga. 608,68 S.E.2d 586
• Decision Date: 15 January 1952
• Docket Number: No. 17655,17655
• Parties: VUN CANNON v. STATE.
• Court: Supreme Court of Georgia

Page 586

68 S.E.2d 586

208 Ga. 608

VUN CANNON v. STATE.

No. 17655.

Supreme Court of Georgia.

Jan. 15, 1952.

Syllabus by the Court.

The verdict was fully authorized by the evidence, and since the special assignments of error are dealt with and disposed of adversely to the plaintiff in error in the several separate divisions of the opinion, the court did not err, as contended, in overruling the amended motion for new trial.

Harold J. Moody, College Park, Mack G. Hicks, Rome, for plaintiff in error.

W. Glenn Thomas, Sol. Gen., Jesup, Eugene Cook, Atty. Gen., R. L. Addleton, Asst. Atty. Gen., for defendant in error.

CANDLER, Justice.

Leo W. Vun Cannon was indicted by a grand jury in the Superior Court of Appling County for the murder of Eugene Bechion. He was convicted of murder, with a recommendation for life imprisonment. His motion for a new trial consisted of the usual general grounds and several special grounds. The motion was overruled, and he excepted.

In so far as it need be related here, the State's evidence in substance shows: The defendant, his brother John Vun Cannon, and the deceased went to the home of Mrs. Laura Martin on the morning of December 24, 1950, reaching there before any member of the family had gotten up. They were all drinking and continued to do so. The deceased, a much younger man than the defendant, had been staying with the latter for several years, and drove his car for him. After a late breakfast, the defendant and Mrs. Laura Martin agreed to take the latter's son-in-law, William Mancil, who was at home on furlough from the Army, to see his mother. When ready to leave, the defendant asked Lillian Courson, a sixteen-year-old daughter of Mrs. Martin, to tell the deceased to come on as he was ready to go. The deceased told Lillian Courson to tell the defendant that he was not going, but would remain at the Martin home. That message was conveyed to the defendant, who immediately afterwards went into the Martin house and into the room where the deceased was. As the defendant entered the house he said, 'I'll get him if it takes this,' meaning his pistol which he then had in his hand. Immediately after the defendant entered the room where the deceased was, Lillian Courson, who was standing on the veranda, heard the defendant say, 'Yes, you will,' and the deceased say, 'No, I won't,' and just following that she heard the report of a pistol. Lillian Courson, as the first person to do so, went into the room where the shooting occurred immediately afterwards, and the deceased had no weapon of any kind, but had been shot. Soon after the shooting, and before the deceased had been removed from the Martin home, the defendant said, 'All he wanted was one more shot through his God-damned head and he would not be able to talk any more.' Over the defendant's protest, the deceased was carried to a hospital where he died a few days later. Two sons of Mrs. Martin, after learning of the shooting, went to her home before the defendant was arrested, and the defendant voluntarily stated to one of them, Carson Courson, that the deceased cursed him and he shot him, and that was the reason for the shooting. He also stated to Monroe Courson, the other son of Mrs. Martin, that he shot the deceased to protect Lillian Courson. W. A. Bechion testified that he went to the hospital soon after his son was carried there and before he was undressed; that he and two hospital attendants searched him and got his knife and pocketbook; and that the knife taken from his son's pocket was very similar in appearance to one produced by Mrs. Martin some days after the shooting.

Mrs. Laura Martin, as a witness for the accused, testified that he had rooms rented in her house, which he used as a palmist and a spiritual healer. On the day of the shooting, and after her daughter Lillian Courson had reported to the defendant that the deceased was not going with him, the defendant stated that he would get the deceased out of the house, as he was drunk. The defendant started in the house and she followed him, fearing there might be trouble. When she got within two or three feet of the door she heard the deceased say, 'I will not do it. I'll cut your guts out of you--you son-of-a-bitch.' In reply to that she heard the defendant say, 'Don't do that,' and then she heard the report of a pistol. She then ran into the room and the defendant said, 'Mrs. Martin, get the knife, I think I have shot him in the hand.' She said to the deceased, 'Give me the knife, son,' and she took it away from him and put it in her bosom. Concerning the knife produced by Mrs. Martin and about which she testified, Donnell Mancil, a daughter of Mrs. Martin, testified that her mother had bought the knife about which she testified from the deceased some everal months before the shooting; that her mother kept it around the kitchen and in her pocketbook; and that her mother said nothing about taking a knife away from the deceased until several days after the shooting. Carson Courson also testified that he talked to his mother, Mrs. Martin, in the presence of the defendant on the day of the shooting and soon thereafter; that she did not say anything at that time about having taken a knife away from the deceased immediately after the shooting; and that it was several days after the shooting before she said anything about a knife.

1. There is no merit in the general grounds of the motion for new trial. The jury was fully authorized to find from the evidence that the defendant short the deceased because he cursed him; and mere words, however vile, will not justify the taking of human life. Code, § 26-1007; Robinson v. State, 118 Ga. 198(5), 44 S.E. 985; Smarrs v. State, 131 Ga. 21(6) 61 S.E. 914.

2. The solicitor-general asked the State's witness Donnell Muncil if she had ever seen any of the 'fortune-telling stuff,' 'hoodine stuff,' 'different kinds of bottles,' or 'powders' which the defendant used in the conduct of his fortune-telling business. She answered, 'Yes, sir.' The question was objected to by counsel for the accused, and a motion was timely made to rule out the answer on the grounds that it was irrelevant, immaterial, harmful, and prejudicial. The solicitor-general then stated to the court that he could not put in all of his evidence at one time; that he wanted to show the whole set up 'out there' at the time of the shooting; and that the evidence objected to would, as he anticipated, go to the credibility of two or three witnesses. The court ruled: 'I will admit it at this time under that statement, and, if it is not connected, I will rule it all out and instruct the jury to disregard it.' As to this, no subsequent ruling was invoked or made by the court. In these circumstances, the ruling as made was not final and affords no sufficient reason for a reversal, even if erroneous. Where testimony is provisionally or conditionally admitted, counsel must renew his objection to it later and invoke a final ruling if he still desires its exclusion, and on his failing to do so no valid assignment of error can be made upon the court's ruling. Thompson v. State, 166 Ga. 512(6), 143 S.E. 896; Mickle v. Moore, 193 Ga. 150, 17 S.E.2d 728; Connor v. Rainwater, 200 Ga. 866, 38 S.E.2d 805; Bryan v. Barnett, 205 Ga. 94, 52 S.E.2d 613.

3. After he had testified that his son had worked for the defendant for several years, and that they would frequently have 'a little run-in or something or something like that,' and over an objection that it was not in rebuttal of any evidence offered by the defendant, and...